Proposed changes to NSW strata laws could result in legislation to ban unit owners from smoking on their balconies.
Smoking Ban on balconies for unit owners
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The opinions expressed in this blog are personal and not intended in to be advice in any way. I have spent many years participating on a number of different Body Corporate Committees.
Tuesday, May 15, 2012
Saturday, May 5, 2012
Commisioner for Body Corporate & BCCM Act. Irrelevant to BC Communities?
The Commissioner for Body Corporate and Community Management Queensland and The BCCM Act are rapidly becoming irrelevant to Body Corporate Communities.
The reality is that many Bodies Corporate ignore the regulations often through lack of knowledge of the legislation but occasionally through indifference. When owners raise concerns they often find that the process of lodging disputes is too cumbersome and costly and in many cases they are forced to accept that their Body Corporate operates by its own rules.
The function of the Commissioner is largely to hear and adjudicate on disputes that are lodged. I have always found it strange that the only way that the legislation might be enforced if a dispute is lodged.
I know of Bodies Corporate who do not hold AGM's. I know of others who don't keep proper records and do not communicate with owners. However, the only way that a Body Corporate would ever be accountable would be if someone lodged a dispute. In many cases, the BC know that there is little possibility of a dispute even if they knowingly ignore the legislation.
The fact is that many owners are intimidated by the entire process and The Commissioner has done little to help make the process user friendly. I think it is fair to say that the process is designed to generally discourage owners from lodging disputes in the hope that they will sort out problems "in house".
In the recent adjudication of Dispute Number 0010-2012 Palm Springs Residences, the Adjudicator made two interpretations of the Act that only accentuate the fact that the Act is becoming irrelevant.
1. The Adjudicator, M.A.Schmidt stated: "as a general proposition, a body corporate may validly resolve to ratify past irregular conduct".
This comment sets an extraordinary precedent. Firstly there is no time limit specified by M.A.Schmidt so presumably, the comment which is part of the overall ruling allows a BC to come back and "ratify irregular conduct" any time after the event. The implications of how this could be manipulated and applied make a mockery of the Act.
M.A Schmidt goes on to say that there could be legal implications for the BC in doing this but they would be outside the jurisdiction of the Act and, once again, owners would find the process of taking legal action against a BC daunting.
2. The Adjudicator, M.A.Schmidt stated that the applicants did not "complain of any detriment suffered as a result of having received notification 7 days after when they thought they should have been notified". The implication is that if a Body Corporate does not comply with time limits in notification of meetings, etc anyone who lodges a dispute would have to show that they suffered a "detriment" or some form of hardship.
These "rulings" only continue to demonstrate why so many Body Corporate Communities ignore the Act. The likelihood of an owner lodging a dispute is small. If an owner does happen to decide that there is no alternative but to lodge a dispute the chances of having the application upheld are a lottery.
It is time that the BCCM Act and the Office of the Commissioner for Body Corporate and Community Management were completely overhauled by the Government.
_______________________________________
The opinions expressed in this blog are personal and not intended in to be advice in any way. I have spent many years participating on a number of different Body Corporate Committees.
The reality is that many Bodies Corporate ignore the regulations often through lack of knowledge of the legislation but occasionally through indifference. When owners raise concerns they often find that the process of lodging disputes is too cumbersome and costly and in many cases they are forced to accept that their Body Corporate operates by its own rules.
The function of the Commissioner is largely to hear and adjudicate on disputes that are lodged. I have always found it strange that the only way that the legislation might be enforced if a dispute is lodged.
I know of Bodies Corporate who do not hold AGM's. I know of others who don't keep proper records and do not communicate with owners. However, the only way that a Body Corporate would ever be accountable would be if someone lodged a dispute. In many cases, the BC know that there is little possibility of a dispute even if they knowingly ignore the legislation.
The fact is that many owners are intimidated by the entire process and The Commissioner has done little to help make the process user friendly. I think it is fair to say that the process is designed to generally discourage owners from lodging disputes in the hope that they will sort out problems "in house".
In the recent adjudication of Dispute Number 0010-2012 Palm Springs Residences, the Adjudicator made two interpretations of the Act that only accentuate the fact that the Act is becoming irrelevant.
1. The Adjudicator, M.A.Schmidt stated: "as a general proposition, a body corporate may validly resolve to ratify past irregular conduct".
This comment sets an extraordinary precedent. Firstly there is no time limit specified by M.A.Schmidt so presumably, the comment which is part of the overall ruling allows a BC to come back and "ratify irregular conduct" any time after the event. The implications of how this could be manipulated and applied make a mockery of the Act.
M.A Schmidt goes on to say that there could be legal implications for the BC in doing this but they would be outside the jurisdiction of the Act and, once again, owners would find the process of taking legal action against a BC daunting.
2. The Adjudicator, M.A.Schmidt stated that the applicants did not "complain of any detriment suffered as a result of having received notification 7 days after when they thought they should have been notified". The implication is that if a Body Corporate does not comply with time limits in notification of meetings, etc anyone who lodges a dispute would have to show that they suffered a "detriment" or some form of hardship.
These "rulings" only continue to demonstrate why so many Body Corporate Communities ignore the Act. The likelihood of an owner lodging a dispute is small. If an owner does happen to decide that there is no alternative but to lodge a dispute the chances of having the application upheld are a lottery.
It is time that the BCCM Act and the Office of the Commissioner for Body Corporate and Community Management were completely overhauled by the Government.
_______________________________________
The opinions expressed in this blog are personal and not intended in to be advice in any way. I have spent many years participating on a number of different Body Corporate Committees.
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