Committee about to misspend money despite warnings

I was intitially asking myself what the problem was here, regarding the scheme paying for pest treatment for all the lots.  Everybody gets their untit treated, so where’s the harm?

And the answer is that some people will be paying less than they should, subsidised by others paying more than they should, because the money that goes into the kitty is based on unit entitlements.

What the committee should be doing is paying for treating common areas and negotiating a reduced fee to be paid by the lot owners individually.

On the question of the strata manager’s “duty of care”, for want of a better phrase, I think you need to pinpoint areas where they have given bad advice or failed to warn owners that they are breaking the law and either ask them to lift their game, if it’s a big firm ask them to appoint a better manager or raise it at your next AGM as a sign that it may be time to get a new manager.

Also, there is a code of conduct for Queensland body corporate managers, which says, among other things:

• They must have a good working knowledge and understanding of the Act, including the code of conduct, relevant to their functions.
• They must act honestly, fairly and professionally .
• They must exercise reasonable skill, care and diligence.
• They must act in the best interests of the body corporate unless it is unlawful to do so.
• They must take reasonable steps to ensure an employee complies with the Act, including the code.
• They must not engage in unconscionable conduct including requiring the body corporate to comply with conditions that are unlawful or not reasonably necessary.

The Code of Conduct is supposed to be part of the BC Manager’s contract, so I would think a breach of the code might be considered a breach of contract.  That could be something to get their attention, at the very least.

Flame Tree (Qld) wrote:

Can anyone suggest another way, such as warning off the pest controller beforehand, or threatening the contract of the property services guy who organized him at the request of the committee. And if anyone has bothered with an pre-emptive legal approach such as an injunction would you recommend that?

The Queensland body corporate equivalent on an injunction is an interim order but that is unlikely to be approved (according to their fact sheet) due to the absence of serious, irreversible harm.

I would start a normal process now with an application to the AG’s office for a ruling that the committee members who approved the expenditure be ordered to refund the Body Corporate the whole amount of the cost of the pest control.  You don’t have much chance of achieving it, but it might establish that they are doing the wrong thing.

Or you could go down the conciliation and dispute route and although you can skip conciliation if there is a matter of urgency, again I doubt if this applies.

Threatening the property services person or warning off the pest control person is crossing a line (marked “strata nutcase”) so I wouldn’t go there.

The best advice I can give is to write to the committee and the strata manager and tell them that if they go ahead with this, you will seek orders from Office of the Commissioner for Body Corporate and Community Management that they individually repay the Body Corporate since they are knowingly defrauding the owners for their own benefit. This is not a case of them making an error in good faith since they have been told that they are doing the wrong thing and have chosen to ignore the advice.

I wonder if it’s as clear cut as you say? The body corporate has a responsibility to maintain the common property, and the walls, floor, ducts, ventilation and plumbing in each apartment is common property, and is where vermin and pests live and spread.

The pest controller will need to access apartments to treat these areas, and if a mouse chews through an NBN cable inside an apartment, the body corporate would be at fault for failing to have controlled the pests. In fact, as said earlier, for a proper pest control treatment to protect common property there will need to be application done inside each apartment, as well as around the more accessible common property areas.

That’s why commonly the body corporate will subsidise the treatments inside apartments, because the treatment benefits the building as a whole as well as the owner of the apartment, and it is hard to quantify who benefits the most. But I think it is wrong to assume that the treatment inside an apartment only benefits that owner, and they must pay for it entirely. The building as a whole benefits when pests are eliminated and cannot spread. So if you take action as you plan, the body corporate could make a good case that if was to the general good to carry out treatments throughout the building.

If working out how to divide the costs between owners and the building is too hard, then it is reasonable that the building covers the whole cost. You need to check the scope of the work – if it says that the pest control is to concentrate on treating pests that interfere with the common property, and spread between apartments, then you may not have much of a case.

Flame Tree (Qld) wrote:

Unfortunately, I’ll disagree with you completely. Seems the Queensland Body Corporate Commissioner’s ACT and adjudication rulings differ to your suggestions, and assumptions also.

If that’s the case, why aren’t the BCC adjudicating in your favour? I’d have thought you’d have gone to them with this rather that the local constabulary (who, quite rightly IMHO) have decided to stay well out of it.

The best way to do things isn’t always the strictly legal way. Most strata schemes in Australia are non-compliant with the laws in some way at some point.  There are some battles where surrender is actually a victory.  I would just let it go – small war, not many dead.

Flame Tree (Qld) wrote:

they likely will (as they don’t usually contradict themself on straight forward matters, and as inferred/discussed with the Commissioner’s office), and being a recent event I haven’t gone that way yet,

There are processes that could be followed to resolve this.  You may find that when actual BCC involvement  is flagged (rather than just threatened), the other side will cave.

However, if you are looking to punish the committee for not listening to your wise counsel, remember that Confucian saying: “When you go seeking revenge, remember to dig two graves.”