 Hello and welcome to today's webinar. My name is Lynne and it's my pleasure to present today's webinar in collaboration with the Body Corporate and Community Management Commissioner's Office. Today's session is a follow-on session from the popular Body Corporate webinar that we ran in June where we were asked numerous questions that we could not get to them all on the day. So as promised at the end of that session we said we would run a second webinar to answer some of the more popular questions that you have submitted. So I appreciate your time is valuable and today we'll run for approximately 30 minutes. Today we are answering the previous questions submitted and have grouped them into the following topics. So we have smoking, guests using common areas, parking issues, pets, repairs, bylaws, committee issues, and the difference between tenancy breaches versus contravention noses. And also we're going to clarify the QCAT process versus the Body Corporate adjudication process. Just remember the information that we will be giving today will be general information. In specific cases you should refer to the appropriate legislation or seek your own independent legal advice. So today we have, we welcome back Christine Partridge from the Office of the Commissioner for the Body Corporate and Community Management for Queensland. Christine has a wealth of knowledge on body corporate matters and an understanding of the body corporate laws and processes. So welcome back today Christine. Thank you for having me. So we got quite a few questions were submitted in relation to smoking. So the first question that we have is, can I not approve an occupant if they smoke? Unfortunately the RTA does not govern the application process when it comes to accepting an application or rejecting an application. It is to be mindful obviously of any discrimination laws. However, smoking is not mentioned in these laws. So at the end of the day the decision is actually up to the property owner or the property manager. We have seen in some agreements where clients have written that the tenant agrees not to smoke internally and only use outside the premises. So again these laws are not governed by the RTA or are they governed by the body corporate. So I'm going to go over to you Christine in relation to the smoking on the balconies and smoking in common areas in a body corporate setup. Okay so the body corporate legislation obviously agrees that an owner's lot is the owner's lot and ultimately it's up to the owner whether or not they permit a smoker within their lot. In regards to what the body corporate can do, there are smoking laws that do relate to this situation and ultimately that should be reviewed. They're governed by Queensland Health so they should always seek advice on those laws and if necessary obtain independent legal advice. They can regulate the use of the common areas so they can decide based on the laws of smoking whether or not they can restrict that in the common areas. These are all going to come down to the specific bylaws of the building and if those regulations need to be put in place then new bylaws need to be implemented. Great. The next question that we have is quite a few questions in relation to the guests using common areas. So a lot of these I would think possibly might come down to potential behavioural issues we are assuming here. So questions that were submitted was about the use of common areas. Do guests have to be present when their visitors go to the areas of the pool or gym and also the issue about sharing of key codes and fobs. So over to you Christine. Okay so again these matters are regulated through the scheme's bylaws so everyone should read and know what each scheme regulates when it comes to guests on common areas. Use of common area so that's there for the benefit of all owners and occupiers and it is mindful to know that the body corporate legislation includes occupiers as owners who live in their units and tenants so that applies to both of them. In respect of whether or not guests have to be present when their visitors go to areas such as pools, gyms or barbecue areas. Again it's a matter of looking at the scheme's bylaws. It also needs to be noted that the body corporate legislation actually prohibits a bylaw from discriminating between a type of occupier. So you can't prevent a tenant for example using a pool where you might allow an owner to use a pool. So you need to check the bylaw and ascertain what it says. In respect to the passing and sharing of key codes or FOBS, again not covered by the legislation and would ultimately come down to the scheme's bylaws. There's been a number of adjudicators decisions on this matter and we'll give you the website later where you can look up those decisions. Great so our next one and these were mainly the top three sort of questions that we were getting asked was in relation to the first question tenants parking extra vehicles in areas not designated to them. I think from the tenancy side it needs to be very clear up front when a tenant applies for a rental property what parking is available for that property. If a tenant informs you that they have a second vehicle and no parking is available for that second vehicle they should be informed again upfront so that they can make a decision whether they wish to proceed or find alternative arrangements for the second vehicle or not proceed with the application. So if a second parking is available in another area say they're given to another car park numbered area then that should be outlined in the tenancy agreement to ensure that there's no confusion during the length of that tenancy. But again being upfront in relation to people do have multiple vehicles what is actually available to the tenants when they do go into the tenancy. The next two questions was can I tow a parked vehicle a car parked in a visitor space and if so who pays the expense. So I'm not sure whether that's one that you can answer there Christine but over to you. It's not specifically what it's not something governed by the body corporate legislation and it doesn't mention towing at all. So ultimately it's again down to the scheme's bylaws. What should be noted is visitors car spaces are regulated by the local government. So you need to have a look at the development approval to see what car parks and how many car parks are required for visitors only. A body corporate will generally have a bylaw that regulates the use of the common property parking areas. They can't permit anyone who is not a genuine visitor to use a visitor's space. If that occurs there is a bylaw enforcement process the body corporate can follow. There have been decisions about towing where towing has occurred in the past and they're based on the actual circumstances of that case. So it's definitely down to the individual circumstances. In one situation a body corporate was ordered to reimburse for the costs noting that they did not follow the bylaw enforcement process whereas another the adjudicator actually declared that it wouldn't be unreasonable for a body corporate to order the towing of the car if the person continued even after numerous contravention notices to park in an area that they weren't permitted to. Great so again we're going to bring up a website where people can have a look at past hearings towards the end of today's session. So the next one is about pets. So unauthorised pets. So if in a tenancy situation if a tenant has a pet in the property when the tense agreement has stated no pets then the managing agent or the owner can issue a remedy breach notice giving the tenant a minimum of seven days to rectify the breach and then follow the process available under the act. If a pet is approved then it should be noted on the general tenancy agreement the type and number of pets best also to be very descriptive as the type of pet that's allowed rather than just maybe saying it's one dog maybe being a bit descriptive as the type of breed or something like that as well as an example. So I'm going to get over to you Christine for the body corporate side things unauthorised pets by an occupier whether they are a tenant or owner and what happens if a land or degrees to allow a pet and then the body corporate says no and is there do you are you aware of any timeframes for body corporate to approve a pet. Okay so again we're back to the schemes bylaws and they should be looked at first if permission is required from the body corporate then the tenant or the owner needs to seek that permission if the body corporate does say no and a person has already put the animal into the lot the body corporate can enforce the bylaws and can seek removal of that animal however there is a dispute process available if the individual who has been refused the pet believes that the decision was unreasonable so that is a process that is dealt with throughout our office through the body corporate office as to through conciliation regardless of whether you're a tenant or an owner. In respect to a landlord allowing a pet and a body corporate not again the body corporate can pursue an enforcement process if they've denied the pet but the other party can dispute the denial as well. So the body corporate will always need to know whether or not the landlord agrees because the land the body corporate can't give permission unless the landlord does. There's no standard time as to how long it takes in a body corporate to approve pets there are notice periods required for meetings and there are ways in which they can make decisions quickly. Ultimately it's up to the person requesting the pet to dictate what they would consider a time frame in regards to when they need their permission or response by. In respect to what is considered reasonable there is a legal test for that and if you want to find out what that is you can search for previous adjudicators decisions. Great so again we're going to come up with that website at the end of the session and I think it's really good for people particularly if you want to know very specific information from past cases I think it's a great website to go to. Just following through in relation to repairs we received a lot of questions about repairs. For tenancy law we can only talk about the lessels obligations under section 185 and that is that they must maintain the premises however I think some of these questions may fall outside the standard side and also maybe also clarifying actually who owns the repair to start with so this is what some of these questions are more about how to define who's responsible for what when there is a leak in the above unit probably linking that into the next question which was determining ownership of repairs internal versus external and in between. Then we'll look at alterations to a building and what happens if there's a delay with the body corporate getting repairs coming getting repairs done so Christine is there a way to define like repairs internally externally and things like that. Yes there is and the first thing when looking at any maintenance or repair obligations is to find out what the plan of subdivision is of that particular building now those that information is retained by the titles registry which is a part of the Department of Natural Resources and Mines and it's stipulated on the plans the survey plans for the building so there's two common types one's a building format plan and one's a standard format plan. Now those plans of subdivision define the lot boundaries and then you know what's internal and what is external. You then look at the body corporate legislation that will define what is an owner's responsibility compared to what is a body corporate's responsibility. So the first thing to look at when in this circumstance when you've got a leak in a unit is to the cause of the leak so someone in that unit who has direct access to the leak needs to find out what's going on and determine what the cause of that leak is. If it is then found to be a common property pipe for example then the body corporate can be approached with the indication from the professional that it is a common property pipe and a quote for the repair and they can approve those repairs. Okay so alterations to buildings again probably coming back to the bylaws. Yeah it's back to the bylaws. There are specific provisions in the legislation about making improvements to common property which does require permission and in some cases common property can be the exterior of the building. Again that comes down to the plans of subdivision. So if a bylaw or the legislation requires a approval from the body corporate to alter the exterior appearance of the building then they need to seek that permission. If they don't the body corporate can request that they return the property back to its original condition and those are orders that have been made through our office as well if people have failed to get permission and have been found to need to return it to the way it was. Okay the next one I think is fairly important too. So what happens if a body corporate delays in getting repairs done? Can there be a claim for costs and this could come from the tenant or it could come from the owner of the property? Yeah it's something that our office does deal with quite often but again go back to what I said before. It's up to the individual who identifies the issue to take the steps in the first place and say what's going on and work out exactly where this problem's coming from. If the body corporate is found to be responsible after those initial investigations are undertaken and they fail to fulfil their obligation in getting the repairs done a claim can be made through our office for either the repairs to be made or for reimbursement of repairs undertaken due to the body corporate's failure. Now we cannot deal with compensation we don't deal with loss of rent so that those matters are outside the BCCM office jurisdiction and you need to obtain independent legal advice if you wanted to pursue the body corporate for those matters. Okay and the last one was entry by trades people and we know that under the tenancy law the acts very clear that if entry is given for repairs and maintenance the tenant must be given a minimum of 24 hours notice on a form 9 entry notice to gain access and that would be a secondary agent being the trades person's details on who is actually entering but what about body corporate organising entry into all the units Christine so that's whether it's an owner occupier or a tenant at one. Okay so there's one section in the legislation that permits the body corporate to enter a lot regardless of who is occupying the lot and they give the notice to the occupier as I said whether it's an owner or a tenant. Now if it is not an emergency it's required to give seven days written notice to the occupier of the lot. Now the body corporate is limited on when it can enter and that's solely to inspect the lot or common property to find out whether work is required to be carried out or to carry out the work. They're not there to simply check on things to make sure everything's going right. Okay thank you. So the next one was about bylaws and I know that we did touch on the bylaws process in the past webinar so we're going to just go very quickly on this one. The questions was please step through again how to amend or add a bylaw, compliance issues of bylaws and what options and what is the process and is there a standard set of bylaws. So I'll just quickly get you to go through all those Christine. Yeah no problems. So a body corporate can amend add or remove a bylaw from its community management statement. So that's the document that records the bylaws that's held with the title's registry. If you wanted to get a copy of the scheme's bylaws you can go there to do that. In order to amend add or remove a bylaw the body corporate must consent by special resolution to record a new community management statement to incorporate the change. Owners vote are given the opportunity to vote on the change. If for example it is an exclusive use bylaw that they are altering then that requires a resolution without dissent. Once the vote is passed, once the motion is passed then the body corporate lodges the request to record a new community management statement with the title's registry within three months of the meeting. Once it becomes registered the bylaw becomes enforceable. Okay so the compliance issues with the bylaws, the options and that comes back down to probably what we talked about in the previous webinar that contravention notices and things like that. Yeah so we've already discussed in detail in the previous webinar the bylaw enforcement process but I'll mention it again here. It's critical to be aware of the process involved in the bylaw enforcement which is outlined in the legislation. The person who identifies a contravention needs to issue what we have is a Form 1, a BCCM Form 1 to the body corporate. They then decide if they're satisfied that a contravention has occurred and can issue a contravention notice. If the person who identified the breach is informed the body corporate is not going to enforce the bylaw then they can pursue that matter through the BCCM office. If the body corporate does enforce the bylaw and issues the contravention notices and that that contravention is not remedied then again that process can be dealt with by the body corporate through our office or the body corporate can pursue the offender through the magistrates court. There is a practice direction number six available on our website that's issued by the commissioner and it dictates this process in detail. It also has a flow chart that's very useful you can run through the process based on the flow chart. Great and just on the last one is there a standard set of bylaws? There is a set of bylaws contained in schedule four of the body corporate and community management act however these do not apply to everyone so as we've mentioned already it's critical to actually go to the title's registry and get the bylaws that are registered for that scheme. A number of times we've had disputes come through our office where the body corporate or an individual is using the wrong set of bylaws so obviously an adjudicator from our office cannot enforce a bylaw that is not registered for them schemes so those disputes sort of fall down. So as I said go to the title's registry make sure you have a copy of the registered bylaws for that building. Great and I think that was one of the things we talked about in the earlier in the previous webinar was making sure that managing agents get a copy of the correct bylaws when they are handing that to the tenant at the start of the tenancy with their tenancy agreement. So just keep going through committee issues and I guess you know the first one was community issues harassing occupants directly what authority do they have just from a tenancy side of things the owner or the landlord has responsibility to ensure that the tenant has quite enjoyment of the property so and I'm not sure what the level of you know harassment that might actually be like a police issue but you know depending on the seriousness of it but Christine is it common to see committee members you know having you know or harassing in this particular was the question directly whether they're the tenant or an owner or occupier? We do hear of it as the information service will receive this query quite often so the first thing to remember is the committee act together when making decisions so any decision of the committee is made by a majority of the committee voting members no one member acting independently has any authority under the legislation in respect of harassment it's not covered by the body corporate legislation so you may need to either contact the Queensland Police Service or your local police station to find out what you can do about that there are nuisance provisions under our legislation and that is a dispute we do deal with if an individual regardless of whether they are committee member or not is causing a nuisance on scheme land and interfering with the useful the peaceful enjoyment of a person's lot then they can be dealt with through those nuisance provisions. Great so disagreeing with a committee decision what can I do and I suppose that comes down to the next what types of decisions does the committee make? Yeah so our legislation opens the dispute resolution process to individuals who believe a committee decision is unreasonable unlawful or unenforceable so they have to show that there has been a contravention of the legislation a disagreement in itself is not necessarily going to initiate a dispute but if there is a contravention of the legislation so for example a committee decision is made contrary to the legislation a person who is directly affected by that should firstly write to the committee and identify that and ask that they remedy the the action that they've taken if they don't then there's the dispute process through the body corporate office. In respect to what type of decisions a committee can make there are restricted issues in the legislation that would prevent the committee from making decisions on certain matters so they are listed on our website generally they are there to deal with the day-to-day administration of the body corporate so they can make decisions in accordance with bylaws minus spending matters and some financial matters. Okay great and the role of the a non-site manager versus a body corporate manager and I know that you probably have issues about this side as well Christine but just clarifying those two specific roles. Okay so let's firstly look at the the definitions in themselves so an on-site manager in our legislation is called a caretaking service contractor that is a person who has been authorized by the body corporate to conduct a letting agents business as well as a service contract is being put in place so they they do those two duties and the role of that person is dictated by their contract so our office and the legislation can't tell you what they're there to do for each scheme you need to review that contract of engagement in respect of a body corporate manager they are engaged to perform administrative duties normally those duties of a secretary and treasurer to assist the body corporate in their bookkeeping financial matters etc again their specific duties are contained in their contract of engagement. Great thanks Christine. So let's just talk about the tenancy breaches versus your body corporate contravention noses so I'll just go first in relation to the tenancy breach. So for a tenancy situation if there's been a breach of the general tenancy agreement and the bylaws do form part of that tenancy agreement then the owner or the managing agent can issue a form 11 noses to remedy breach given the appropriate time frame and that usually is with the general breach seven days to rectify it. It's really important that owners and their managing agents do provide a copy as I said of the appropriate bylaws at the start of the tenancy. If a breach notice is not rectified then parties are able to follow the next process which would be a notice to leave or they could come through to our dispute resolution service at the RTA. So just over to you Christine just also to remember with your tenancy situations it is a requirement under your body corporate laws I believe Christine that tenant information needs to be forward to the body corporate managers. Yes that's right so if there is a tenancy in place of six months or more the tenants details must be given to the body corporate. It's also this also entitles the body corporate legislation entitles the body corporate to enforce bylaws directly against the tenants and owners and other occupiers. So those details need to be given. So the process I've already gone through in respect of the enforcement but it is put on our website. So that's for the body corporate convention contravention notice. That's right. Okay so with the residential tenancy side of things the first step obviously is self-resolution we want parties to talk to each other that's the tenants and the agent or the landlord. If it's not resolved they have access to the RTA's free dispute resolution service and again this is only dealing with matters between a tenant being an occupier and also to the landlord or the managing agent. If in that dispute process it's a conciliation process if it's not resolved then you are issued with a notice of unresolved dispute to pursue the matter to the Queensland Civil and Administrative Tribunal. So with your process Christine about the body corporate dispute process. Okay so the body corporate legislation does make it mandatory for all individuals to go through a self-resolution process before pursuing dispute resolution. In regards to the dispute process the initial step is conciliation. Now that is mandatory. Most disputes will be required to go through conciliation. There is a fee involved application fee that must be paid of $76.50 currently. If the matter cannot be resolved through conciliation then adjudication can be utilized again that's the lodgment of a form with a fee and the onus is on the applicant to prove and make their case. Adjudicators do have the ability to investigate but initially the applicant must be the one to submit all supporting and relevant documentation. Once an order is made that order is legally binding and it can be appealed through QCAT and it can be enforced in the magistrates court. Okay so again I'm just going to confirm one of the questions that come in. We weren't going to do a real lot in relation to the questions because of time restraints today. We're dealing with more questions from the previous one but yes you do an owner or managing agent must give the body corporate managers a copy of their details for the tents living in the property. They're there for six months or longer. So just moving on to the next part it's really important that you understand your rights responsibilities whether you're the owner, the managing agent or whether it's a tenant that they are rights responsibilities under the residential tenses and roomy accommodation act 2008 and also the regulations for occupants and again whether the tenant or the owner you have body corporate rules to follow as well so that's under the body corporate and community management act of 1997 and also their regulations as well. So remember neither the RTA or the body corporate commissioners office regulate the management arrangements between an owner and an agent. We would refer you to the officer fair trading for information in that regard. So Christine mentioned earlier that there are some previous cases disputed cases that have actually gone through to tributals. You can actually look up on these two websites. So one is a supreme court library website and the other one is else Lee which is a u s t l double i dot edu dot a u the other one s cl q l d dot o r g dot a u in these you can look at appeal decisions and also adjudication decisions that have happened in the past and again type in some keywords and you'll be able to find that. So if you're looking for information about parking smoking pets things like that again you can go through and look at previous decisions that have been made. Just information about the body corporate commissioners office and again Christine did go through this in the previous webinar that we went through. They do have a lot of information on their website. They have forms you have access to the dispute resolution service and also their adjudication service. One of the important things that they do have there is an education tool and they also do run seminars across Queensland as well. The RTA for any attendency matters again we're going to be able to provide you with information through our 1300 number or again on our website. We hold the bonds in trust until during the length of the tenancy. We offer a free dispute resolution service between a landlord manager or their tenant if there's a dispute either during the tenancy or at the end of the tenancy. We also investigate penalty provisions of the legislation as well and all forms and publications are available on our website. So all our details here in relation to the body corporates phone contact details and also the RTA's phone number as well. I know that we have got quite a few questions coming in and I'm sorry that we are running out of time in relation to answering them but one of the ones is in relation to pools. So just be very clear that in relation to pool safety laws you need to go to the Department of Housing Public Works website for that which is hpw.qld.gov.au for those people who've submitted questions about pools. In relation to pet bonds the Queensland laws don't allow pet bonds so a bond is a bond and there's maximum requirements in relation to bonds. So look I'm terribly sorry we can't get to everyone's question today there's been a lot of information provided today based on all the questions that we went through from the previous webinar so we really do appreciate it. Watch this first we will continue with more webinars on various topics. Again a lot of information on the Body Corporate's webinar I do thank Christine for coming in today to deal with today's webinar particularly all about Body Corporate and Community Management. Thank you again for your attendance been greatly appreciated when the webinar completes there will be a very quick survey if you could please complete that for short questions including anything that you would like to know about particular topics that we can do future webinars about so it's a great opportunity to do that. Again thank you so much for your attendance this morning I do realise that we have gone slightly over time so again thank you very much and the webinar will now end.