QCAT DECISION: BCCM Act should be read liberally!

A recent decision from QCAT is yet another indication that the BCCM Act, which regulates Body Corporate Communities, is becoming more irrelevant than ever. The QCAT member who ruled on the matter stated that BCCM Act should be read liberally - ie not taken strictly.

In his decision for the appeal of Application Number APL 157-12 (29th January 2013), Dr J.R.Forbes made a number of comments that only serve to weaken the Act and and the enforcement of regulations.

Dr Forbes describes the BCCM Act as a "lengthy, technical and complex instrument" and goes on to say that committee members cannot be expected to be experts in understanding and determining the rules and regulations. He fails to mention that Committees can rely on Body Corporate Managers to provide advice as required and that the Commissioner for Body Corporate has a help line to assist owners who have questions concerning the Act.

He states that "if the legislation were at all times and in all circumstances applied with utmost rigour and most precious attention to detail, its objects and policy would be retarded by endemic disputation, rather than advanced." 
In other words, a loose interpretation of the Act will result in less disputes.

He continues by comparing the BCCM Act with the Corporation Act 2001 noting that some sections of the Act could be construed "liberally" using the example that the invalid appointment of a director or the failure to assemble a quorum could be excused if there is no substantial injustice.

He argues that the BCCM Act should also be interpreted "liberally" and similar irregulaties or breaches could also be excused.

The reality is that many Bodies Corporate do not take the BCCM Act seriously at all. In fact, many Committees ignore it altogether.

The Commissioner for Body Corporate and the BCCM Act itself are reactionary instruments rather than being proactive. The Commissioner only acts when disputes are lodged. The process of lodging disputes is so time consuming and daunting that the majority of owners will reluctantly just accept breaches of the Act.

There are a huge number of Body Corporate Communites in Queensland. Many have issues that should be addressed but the actual amount of disputes that are lodged is miniscule in relation to the number of Body Corporate Communities.

The fact is that the Office of the Commissioner for Body Corporate is not logistically capable of handling "endemic disputation" irrespective of whether the disputes are justified or not. They do not have the staff to handle huge numbers of disputes.

One way of discouraging disputes is to interpret the legislation "liberally" which would inevitably result in many applications being dismissed.

Dr Forbes also affirmed that it is acceptable for committees to retrospectively resolve and ratify past irregular conduct (see my article on the original Application). This opens up a huge can of worms. It alows committees to bend and manipulate the rules at will secure in the knowledge that a dispute is unlikely anyway.

The BCCM Act is rapidly becoming a dinosaur - close to extinction. Dr Forbes is correct in saying that it is a complex document but there is no point in having legislation if it is rarely enforced and largely ignored by many.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. For more visit my AboutMe page If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to conta

Pets in Body Corporate Communities – Free For All

Recent decisions through the Commissioner for Body Corporate and appeals have resulted in an about face in regards to permission for pets in Body Corporate Communities.

Adjudicators rulings indicate that by laws in many Body Corporate Communities are now not worth the paper they are printed on and may discriminate against some owners in regards to pet approvals.

As a result of the decisions, Body Corporate Communities would be unwise to have a by law in place that bans or restricts pets. They should also consider removing any by law that restricts the size of a pet eg "dogs must be smaller than 10kg" and they should also be aware that restrictions on the number of pets per owner may well be invalid.

Pets in Body Corporate Communities: Background

1. Pet Approvals in Body Corporate Communities

Seachange Retirement Village 1140-2010 In this ruling, the Adjudicator addressed the "issue of reasonableness" in relation to keeping pets in Body Corporate Communities. He stated: "The most significant of these was a decision to invalidate a by-law for Kings Row Centre that prohibited residents from keeping dogs or cats.

In that decision, the Appeal Tribunal within the Queensland Civil and Administrative Tribunal determined that a by-law cannot contain a blanket prohibition on the keeping of dogs and cats. This was even though it was a high rise scheme in which it was recognised the keeping of a cat or a dog in a safe and healthy environment within the owner’s unit could inconvenience other residents."

The Adjudicator went on to say: "Following this decision, adjudicators have found pet by-laws to be unreasonable when they have involved a ban on the keeping of dogs or cats based on an arbitrary size or an arbitrary number of desired pets."

2. Weight Restrictions for Pets

Riverside Park (2011) 0958-2010 The Adjudicator states: "I believe its (sic) is quite possible for some breeds of dog exceeding 10 kilograms in weight, to be kept within lots without causing nuisance or annoyance to other lot owners. As a number of owners have pointed out, some small dog breeds have a high activity level and a propensity for barking whereas some dog breeds grow to more than 10kgs but rarely bark.

Further, given that there is vehicular access to each lot, it would be possible to transport an animal to and from a lot by vehicle, thereby obviating concerns regarding the presence of larger dogs on common property. Having regard to the circumstances, I am of the view that to the extent that by-law 16.1 restricts ownership of dogs to dogs not exceeding 10 kilograms in weight, that part of clause 16.1 is unreasonable and therefore invalid."

3. Restrictions on the Number of pets

Vantage (2011) 0978-2010 The Adjudicator ordered: "I further declare that Hendrik Zeeman is entitled to keep the two terrier dogs Dougal and Turbo on his lot subject to any reasonable conditions which may be imposed subsequently by the body corporate".

The Body Corporate was ordered to draft and submit a new CMS with ammendments to their by laws regarding the keeping of animals. Prior to recent rulings, some Adjudicators had dismissed various applications from owners or occupiers who wanted to keep pets despite by laws that prohibited the keeping of animals.

Adjudicators now appear to be adopting the approach that all owners are entitled to keep pets on their lots provided that those pets do not disturb or cause a nuisance to others.

This does seem to be a reasonable approach but many Body Corporate Communities still maintain by laws that are out of date and are discriminatory to others. One other issue that will be addressed in the future is whether owners should allow their friends and family to bring pets to their units or townhouses.

There are many logical arguments in favour of this, particularly in light of recent decisions. I believe it is discriminatory to prevent a bona fide visitor to bring a pet to a Body Corporate Community. It is likely that an Adjudicator will be required to address this at some point in the future. The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way.

I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.
If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

I am the owner of http://www.moviemem.com/

Body Corporate Records Access Denied!

As a general principle owners should be able to expect to access Body Corporate records after paying a prescribed fee. However, some rulings by Adjudicators indicate that it is not that simple.


If a Body Corporate believes that certain records are subject to "legal privilege" then they have the right to refuse access to any owner who may be involved in either actual or threatened legal action against the Body Corporate or presumably anyone who claims to be affected by the records.

There are times when it might be prudent to withhold certain documents from an owner on the basis of legal privilege but anyone with an ounce of imagination should be able to see how this ruling could be abused.

It would be very easy for a Committee to deny access to Body Corporate records based on "legal privilege". The owner would then have to decide whether to lodge a dispute. If the records were needed urgently, the process of waiting for the dispute to be heard could prove costly for the owner.
An Adjudicator recently ruled that a dispute with QCAT constitutes legal action. Presumably any dispute that has been initiated or implied also comes under the banner of "legal privilege".

There are other considerations that could lead to abuse of this process. Who decides whether records are subject to legal privilege or not? What if the person who is actually seeking the records is the Chairman, Secretary or another Committee member?

There have been disputes between the Body Corporate and the Body Corporate Manager in the past. The Body Corporate Manager is the custodian of the records. What would happen if the Body Corporate decided that the Body Corporate Manager could not access records because of legal privilege?

I feel that all Body Corporate records should be available for access by owners irrespective of any implied or actual legal privilege.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.

If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

I am the owner of http://www.moviemem.com/

Holiday letting - another nail in the coffin

Many investors have been finding that the return from holiday letting their apartments does not match the return that they would achieve from long term rentals.

Whilst there are times when the returns for holiday rentals are high eg Christmas and holiday periods, the net return over a full year is often a disappointment to owners. Fees and charges associated with holiday letting are high and the upcoming hike in electricity charges will be the final straw for many investors.

Owners who use holiday letting pay for all electricity charges. However, if they rent their apartments out with a long term lease, the tenants pay for the electricity.

Electricity providers are writing to owners advising of the increases in charges. One such provider clearly blames "the impact of the Federal Government's carbon price" as one of the factors influencing the increases.

Astute owners will be doing their sums and many will be making the decision to take their units out of the holiday pool and rent them out on a long term basis. This will be a huge blow to Caretakers who rely on holiday lettings in Body Corporate Communities.

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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. I am the owner of http://www.moviemem.com/

Access to BC records for all owners? Not necessarily.

As a general principle owners should be able to expect to have access to BC records after paying a prescribed fee. However, recent rulings by Adjudicators indicate that it is not that simple. If a BC believes that certain records are subject to "legal privilege" then they have the right to refuse access to any owner who may be involved in either actual or threatened legal action against the BC or presumably anyone who claims to be affected by the records.

There are times when it might be prudent to withhold certain documents from an owner on the basis of legal privilege but anyone with an ounce of imagination should be able to see how this ruling could be abused.

It would be very easy for a Committee to deny access to records based on "legal privilege". The owner would then have to decide whether to lodge a dispute. If the records were needed urgently, the process of waiting for the dispute to be heard could prove costly for the owner.

An Adjudicator recently ruled that a dispute with QCAT constitutes legal action. Presumably any dispute that has been initiated or implied also comes under the banner of "legal privilege".

There are other considerations that could lead to abuse of this process. Who decides whether records are subject to legal privilege or not? What if the person who is actually seeking the records is the Chairman, Secretary or another Committee member?

There have been disputes between the BC and the BC Manager in the past. The BC Manager is the custodian of the records. What would happen if the BC decided that the BC Manager could not access records because of legal privilege?

I feel that all BC records should be available for access by owners irrespective of any implied or actual legal privilege.

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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.

No Smoking on Balconies for Unit Owners - coming soon!

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.

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.

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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.