The role of the caretaker within a body corporate can sometimes cause confusion. As the caretaker is frequently onsite managing the scheme’s day-to-day issues, it can fuel the assumption that the scope of their responsibilities is wider than it is. By-law enforcement is one of the tasks residents commonly attribute to caretakers. However, contrary to popular belief, the caretaker is not the ‘all-powerful’ body corporate sheriff appointed to enforce the scheme’s by-laws. In this article we will clarify the avenues available for enforcing by-laws, while highlighting who holds the reins when it comes to body corporate decision-making.
What is a contravention notice?
A contravention notice is an official warning given to an owner or occupier stating that the body corporate believes they are breaching a by-law. The notice must identify the relevant by-law and how the body corporate believes it is being breached. It should also alert the person that non-compliance with the notice allows the body corporate to lodge a conciliation application through the Office of the Commissioner for Body Corporate and Community Management (BCCM) or commence proceedings in the Magistrates Court.
There are two types of contravention notice:
Each notice must contain the information outlined above. The only factor distinguishing the two is that the continuing contravention notice requires the body corporate to set a timeframe for the person to rectify the issue, whereas the future contravention notice requires the person not to repeat the breach.
For example, if someone has been using an area of the common property for about four months to store all the odds and ends from their garage, the body corporate would issue a continuing contravention notice. This is because the breach is ongoing and likely to continue. Alternatively, if someone has hosted a handful of disorderly parties, the body corporate would issue a future contravention notice, as they do not want the previous behaviour to be repeated.
What is the caretaker’s role in issuing a contravention notice?
The caretaker has no authority to decide whether to issue a contravention notice, even if it is stipulated in their contract. A caretaker may still be obliged to perform associated tasks such as:
- reporting potential breaches to the committee;
- reminding residents of their responsibilities under the by-laws; or
- sending out the contravention notice following the body corporate’s decision to issue it.
The extent of the caretaker’s duties to the body corporate regarding by-laws depends on the terms in their engagement.
Only the body corporate can make a decision to issue a contravention notice to an owner or occupier. When we refer to the ‘body corporate’, this does not mean ‘the caretaker’ for the scheme. Specifically, the decision to give someone a contravention notice can be made by the committee – who are authorised under the relevant legislation to make decisions on behalf of the body corporate – or lot owners in a general meeting.
Reporting potential breaches of by-laws
Although caretakers do not have the authority to decide to give someone a contravention notice, they can assist the committee to enforce the by-laws. For example, they can notify the committee if they witness a contravention or are advised by another resident that a potential contravention has occurred. They can do this formally by issuing a prescribed notice (BCCM Form 1) to the committee – drawing attention to the potential breach and giving them an opportunity to issue a contravention notice. Alternatively, they can advise the committee more informally in writing, verbally or via another method agreed to by the committee.
Reminding residents of their responsibilities under the by-laws
There is often a misconception that when the committee is given a Form 1, they are required to issue a contravention notice. Importantly, the committee is not obliged to give someone a contravention notice after receiving a Form 1. The committee must exercise its own judgment and act reasonably in the circumstances when deciding whether to issue a contravention notice.
Instead of issuing a contravention notice, the committee may choose to enforce the by-laws by asking the caretaker to remind residents of their obligations to comply with the by-laws. For example, there may be new tenants who have just moved into the scheme and are not aware that they should not be parking on the common property. Sometimes a friendly reminder is enough to clear up any potential issues.
Sending out the contravention notice following the body corporate’s decision to issue it
While a caretaker cannot make the decision to issue a contravention notice, they may be asked by the committee to send out the notice on behalf of the body corporate. It would depend on the wording of the terms of their engagement with the body corporate as to whether or not they can be asked to do it. More often however the body corporate manager is tasked with this duty.
By-laws are in place to regulate the behaviour of residents, as well as their use of the common property and lots. In view of their importance, it is essential that the body corporate or owners and occupiers are under no illusions about the role of caretaker in this process. The confusion simply causes the committee and residents to expend unnecessary time and energy contending with the caretaker instead of taking appropriate action to enforce the by-laws.
Author: Jane Wilson, A/Commissioner for Body Corporate and Community Management