The Office of the Commissioner for Body Corporate and Community Management (BCCM Office) sometimes receives dispute resolution applications that raise emotive and concerning claims of harassment, bullying or abuse.
When people disclose these personal experiences, it is clear that these difficulties and challenges would benefit from a resolution.
However, under current legislation, there is no capacity for the BCCM Office to provide dispute resolution services in relation to allegations of harassment, bullying or abuse.
Sometimes parties seeking to have unacceptable behaviour addressed lose valuable time lodging applications that we are unable to progress because they do not fall within our jurisdiction, when other avenues or agencies would be of more assistance in their situation.
This article provides general information about some of the options that may be available. However, as the BCCM Office is not able to give legal advice about what steps a person should take in relation to a dispute, parties seeking legal advice should direct their enquiries to a qualified legal practitioner.
BCCM OFFICE JURISDICTION
The Body Corporate and Community Management Act 1997 (the Act) defines the disputes that our office can deal with. Generally, a dispute must be about a claimed or anticipated contravention of the Act or the Community Management Statement (CMS) or the exercise of rights or powers or the performance of duties under the Act or the CMS.
There is no provision under the Act that considers or defines ‘harassment’. Accordingly, even though a party might be experiencing considerable distress at what they perceive to be harassment, there is no jurisdiction for the BCCM Office to consider disputes about whether a person’s behaviour constitutes “harassment”.
Similarly, the Act does not deal with ‘bullying’. Bullying is a term which has particular meaning in other contexts, for example, in relation to workplace health and safety. While this is not something on which the BCCM Office can advise or has jurisdiction over, further information about bullying in a workplace context can be found at https://www.qld.gov.au/law/your-rights/workplace-rights/harassment-and-bullying/.
Like harassment and bullying, ‘abuse’ is not a term which is contemplated under the Act and thus there is no capacity for the BCCM Office to provide dispute resolution services in relation to allegations of abuse. While the BCCM Office does not have jurisdiction over these matters, there can be avenues for addressing these types of issues under body corporate laws and BCCM dispute processes in some situations such as breaches of by-laws.
POSSIBLE OPTIONS FOR ADDRESSING OWNER/OCCUPIER BEHAVIOUR UNDER BODY CORPORATE LAW
Nuisance and by-law provisions in body corporate legislation may provide avenues for addressing unwanted behaviour of other owners or occupiers through body corporate or BCCM processes.
‘Nuisance’ is a concept provided for under section 167 of the Act.
This provision comes with particular qualifiers and is not a general ‘catch-all’ about any action which might be regarded by the body corporate, or another occupier, as a nuisance.
Specifically, the section about ‘nuisance’ provides that an occupier “must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.”
Accordingly, the onus will be on the applicant in a dispute to ensure the nuisance provisions are satisfied such that they can provide evidence that an occupier has used, or permitted the use of, a lot or the common property resulting in an outcome including (a), (b) or (c) above.
Steps an owner or occupier can take regarding nuisance in their body corporate scheme
If a resident’s use of their lot or common property causes a nuisance or hazard to another owner or occupier, they may be able to apply to commence a conciliation process in BCCM to assist them to resolve the issues they are experiencing.
However, before an owner or occupier does so, they must first attempt ‘self resolution’ directly with the resident causing the nuisance.
This means they must first try to resolve matters with the resident causing the nuisance or hazard themselves. A good first step in these situations can be to initiate a conversation with the other resident involved, or to write to them asking them to stop the behaviour that is alleged to be beyond what is reasonable for day-to-day living.
Putting this request in writing can assist the owner or occupier to establish there is an ongoing or “current dispute” about these issues if their written requests are ignored or declined and it becomes necessary for them to lodge a conciliation application with BCCM to assist them to resolve matters.
Steps the committee can take regarding nuisance caused by an owner or occupier
The case of Tank Tower considered whether the large volume and nature of a lot owner’s correspondence to their body corporate and its representatives constituted statutory nuisance and/or a breach of their by-laws.
The Adjudicator said “Receiving and responding to correspondence from owners is a normal part of the administration of a body corporate. I consider that, providing it acts reasonably in doing so, a committee is entitled to set conditions on how owners communicate with the body corporate to ensure that correspondence is handled efficiently and to minimise the resource impacts. For example, committees commonly specify an address for correspondence, a primary point of contact for queries, or request communication in writing so that there is a record of the issue”.
This suggests that, depending on the facts and circumstances, it may be possible for a body corporate to satisfy the test for nuisance under section 167 of the Act if, for example, the body corporate committee is receiving voluminous correspondence from an owner, and the correspondence is of a nature and a frequency that would interfere unreasonably with a person of ordinary sensitivity.
Relevantly, the changes to the body corporate Standard Module Regulation that commenced on 1 March 2021 also assist in addressing this type of behaviour, as the new Regulation provides that the committee is not required to decide about an owner’s motion if the lot owner has, within the last 12 months, submitted:
- a motion about the same issue; or
- six or more motions.
Committees in this situation are required by legislation to advise the lot owner that they are not resolving the motion for one of these reasons.
By-laws are the rules that a body corporate makes to control and manage its community titles scheme. Bodies corporate commonly have by-laws that regulate how owners and occupiers can use their lots or common property, such as a noise by-law, flooring by-law, pet by-law, parking by-law, or communications by-law. The body corporate is responsible for enforcement of the scheme by-laws.
If a body corporate has by-laws as part of its community management statement (CMS) that touch upon issues that are related to, or underlying, the behaviour of the owner or occupier who is causing concern, enforcement of these by-laws may ultimately resolve the issues being experienced.
A copy of the scheme CMS and by-laws can be obtained by contacting Titles Queensland on 1300 255 750.
Further information about the process for enforcing scheme by-laws can be found in Practice Direction 6.
Steps an owner or occupier can take to enforce body corporate by-laws
As outlined in Practice Direction 6, if an owner or occupier believes another resident is breaching any of the registered by-laws as recorded in their scheme’s CMS, they can ask the body corporate committee to enforce the by-laws by issuing the body corporate committee with a BCCM Form 1.
Steps the committee can take to enforce body corporate’s by-laws
If a body corporate believes that an owner or occupier is breaching scheme by-laws, the body corporate committee can speak to the owner or occupier informally to try to fix the issue.
If that does not work, the first formal step the committee must take to enforce the relevant by-law is to give a by-law contravention notice to the person it believes is breaching the by-law. While it is not compulsory to do so, committees are encouraged to use BCCM Form 10 when giving a contravention notice about a by-law breach it considers is likely to continue, or BCCM Form 11 in other cases, as these Forms have been designed to meet legislative requirements for a valid contravention notice.
The decision to give a by-law contravention notice can be made by the committee, or the body corporate at a general meeting.
The body corporate usually cannot take action to enforce the by-laws until it has sent a by-law contravention notice.
Making a new by-law
If a body corporate does not have by-laws as part of its CMS that touch upon issues related to, or underlying, the behaviour of the owner or occupier who is causing concern, the body corporate may wish to consider making by-laws to regulate nuisance behaviour.
For example, per the case of Tank Tower, a body corporate could consider making a (new) by-law to expect communications to the body corporate to be reasonable, respectful, constructive and not a nuisance.
POSSIBLE OPTIONS FOR ADDRESSING BEHAVIOUR OF SERVICE CONTRACTORS UNDER BODY CORPORATE LAW
When concerns exist about the conduct of a body corporate manager or another service contractor (as opposed to an owner or occupier), in the first instance, they can be raised with the body corporate committee, or the professional organisation to which the service contractor belongs.
If concerns are not resolved through these informal processes, body corporate legislation allows a body corporate to terminate an engagement with a body corporate manager, service contractor, or letting agent, for:
- engaging in misconduct
- being grossly negligent (extremely careless) in carrying out their functions under the engagement
- failing to perform duties as required under the engagement (contract with the body corporate)
- failing to comply with the code of conduct
- failing to comply with disclosure requirements.
However, before doing so, the body corporate must issue a remedial action notice (RAN).
The RAN must:
- state that the person has not met their obligation in a way mentioned above
- include specific details that identify the issue (such as the duties not carried out)
- provide a notice period (no less than 14 days) during which they must remedy the issue
- state that if they do not comply with the notice within the notice period, the body corporate can terminate the engagement.
While the decision to issue the RAN can be made by a body corporate committee, the decision to terminate an engagement must be by ordinary resolution at a general meeting.
OTHER AVENUES FOR ASSISTANCE
It is important to remember that any individual with safety concerns as a result of threats of violence, abuse or harassment from others in their scheme can report their concerns to the Queensland Police Service. Reports can be made online at www.police.qld.gov.au or by calling 131 444.
In addition to seeking legal advice, parties needing help to resolve other interpersonal conflicts in their body corporate that do not involve BCCM matters may also wish to consider the neighbourhood mediation services offered by the Dispute Resolution Branch of the Department of Justice and Attorney-General. Further information about these services is available at https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/settling-disputes-out-of-court/mediation-services/neighbourhood-mediation
Author: – Sarah Zeidler, Commissioner for Body Corporate and Community Management
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