Are caretakers allowed on the Exec Committee?

Matt

Not sure about your logic.  What it’s saying is that just because you’re a member of the EC carrying out caretaker duties doesn’t mean you’re a caretaker (and subject to the bits of strata law that apply to caretakers).

A caretaker can be a member of the EC as long as they are properly nominated by an owner and elected by a majority of owners if an election is required.

A caretaker or building manager doesn't have to be an owner to vote at an AGM (or EGM) as they could be carrying proxies from owners (which is where the problems often begin).  It's true that they still can't vote for anything from which they derive a financial benefit but they can influence the make-up of the Executive Committee.  After that, it's down to the individuals concerned.

For my money, caretakers and building manager shouldn't be on the committee but they should be present at EC meetings to answer questions and advise.  But as far as I can telll, there is no restriction on them being on the EC. 

But getting back to the definition, this is what the law says:

40A Who is a caretaker?
(1)  A caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation for the strata scheme concerned:

(a)  managing common property,

(b)  controlling the use of common property by persons other than the owners and occupiers of lots,

(c)  maintaining and repairing common property.

(2)  However, a person is not a caretaker if the person exercises those functions only on a voluntary or casual basis or as a member of the executive committee.

(3)  A person may be both a caretaker and an on-site residential property manager.

(4)  For the purposes of this Act, a person is taken to be a caretaker for a strata scheme if the person meets the description of a caretaker set out in this section, regardless of whether the title given to the person’s position is caretaker, building manager, resident manager or any other title.

40BHow is a caretaker appointed?

(1)  A caretaker is required to be appointed by an instrument in writing (a caretaker agreement) executed before or after the strata scheme commenced by the caretaker and:

(a)  by the original owner, if executed before the strata scheme commenced, or

(b)  under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme concerned, if executed after the strata scheme commenced.

(2)  Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires:

(a)  at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed by the original owner, or

(b)  when 10 years have expired after it commenced to authorise the caretaker to act under it, in any other case.

(3)  The functions of a caretaker under a caretaker agreement may be transferred to another person only with the approval of the owners corporation. A person to whom those functions are transferred is taken to be appointed as a caretaker by the caretaker agreement.

(4)  An owners corporation may terminate a caretaker agreement in accordance with its terms, and may approve a transfer of the functions of a caretaker, if authorised by a resolution at a general meeting of the owners corporation.

40CWith which functions of an owners corporation can a caretaker assist?

(1)  A caretaker may, in accordance with the caretaker agreement appointing the caretaker, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property.

(2)  However, the owners corporation may continue to exercise all or any of those functions, subject to the caretaker agreement.

(3)  A person is not a strata managing agent for the purposes of this or any other Act only because the person is a caretaker acting in accordance with a caretaker agreement.

 

bpositive said:

so this means if you do not have exclusive use of common property you are not a caretaker?

Nope.  The opposite of the definition “a caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation …” is not that someone who doesn’t have exclusive use of CP can’t be a caretaker.  For instance, a building manager may be considered a caretaker under the Act, even though they don’t own a property in the building. Is an on-site manager someone who lives on-site or is just there during working hours? And is an on-site manager who lives in the block but is only available during office hours any different from one who lives in another suburb?

This is what Fair Trading says HERE:

Caretakers and building managers

Caretakers …  do not have the same delegated functions as a licensed strata managing agent.

Caretakers may operate as letting agents within the building and are often referred to as the building manager. They may assist the owners corporation in:

• the management of common property

• controlling the use of common property by tradespersons and other non-residents

• the maintenance and repair of common property.

Caretakers may not enforce by-laws or carry out other similar functions of the owners corporation.

A person is not a caretaker if they exercise those functions on a voluntary or casual basis or as a member of the executive committee.

Protection of strata owners in relation to caretaker contracts under the Strata Schemes Management Act also apply to anyone carrying out the role of an on-site caretaker even if they use a different job title such as a ‘building manager or ‘resident manager’.

Understandably, there is a lot of confusion about this, not least because of the fudging of duties between building managers, on-site managers, strata managers and executive committee volunteers (and those who do some work voluntarily and other work that they are paid for … which is how this discussion got started).

This is an area of the law that Fair Trading really needs to clear up.  They need to define the roles, the rights and the responsibilities and basically say you can’t call yourself one thing if you are, to all intents and purposes, another.

There is so much confusion in Strataland about this.  Whenever I get postings that says “I got a letter from Strata …” I have to ask what they mean by “Strata”  becasue it could be any of the above as well as the EC secretary, the rental manager or even the developer.

A little clarity would not go amiss.