Case Study: An Ineffective Response To A Body Corporate Dispute

Body corporate dispute

I did a search the other day that contained this item regarding a body corporate dispute:

Tabled correspondence from the Caretaker complaining of by-law breaches by unit x (The Secretary)… There have been altercations between The Secretary and the Caretaker including physical and verbal violence.

The committee discussed the matter (The Secretary was absent) and felt the dispute appears to be localised between the Caretaker and the Secretary…. Resolved to monitor the situation.

To me that sequence is troubling.

What’s happened is that the Secretary, who lives onsite, had done something which breached the by-laws.

The Caretaker then approached the Secretary to rectify the issue, as he is required to do under the terms of his contract, and was verbally abused for his trouble.

He’s then responded by getting aggressive with the Secretary, who’s responded in kind, or vice versa. However it happened the confrontation has escalated.

The Caretaker has been sufficiently upset by all this to put something in writing to the Committee, which will then be reported to all the lot owners via the minutes.

The Committee, having received the complaint, discussed the matter between themselves and decided to leave the two combatants to just deal with it.

A symptom of a deeper problem?

This is a ringing lots of little bells and whistles.

There’s are three points in particular that stand out to me:

  1. The Secretary seems to think he’s above the by-laws, and
  2. The Caretaker is trying to do the job, but, arguably, not succeeding well, and, most importantly
  3. The Committee doesn’t back either the Secretary or the Caretaker and has in fact completely failed to take any action or stand whatsoever.

Body corporates are effectively little countries with the Committee acting as the government by making decisions and administering funds, the police by enforcing by-laws and the courts by adjudicating decisions. There is of course “right of appeal” for adjudication via the actual court system.

The body corporates minutes play the role of the media; the intent being to keep all the lot owners (citizens) informed of what’s happening. The minutes are the tool the Committee uses to communicate with the lot owners.

The Committee are the community leaders and their response to situations will set the tone for how things are handled within the scheme.

In this case their response has been to take no action.

Which from the perspective of the lot owners would be like the two politicians having a punch up in parliament and everyone else simply shrugging their shoulders and ignoring them.

Keeping the peace

One thing all body corporates have in common is they’re enclosed spaces where lots of people live and share amenities. With higher density inevitably comes greater chance of disputes.

And the best way to control body corporate disputes is to have clear, enforced rules that everyone must live by. It’s the same underpinning of any democracy; the rule of law, meaning no one is above the law.

Hence it’s problematic when a committee member feels the by-laws don’t apply to them. At best it creates resentment within the scheme and at worse it can be a first step along the road to some serious corruption.

OK, that sounds overly dramatic, and the reality is that these sort of actions come up for all sorts of reasons, most of which are motivated by simple lack of understanding.

Which makes it even more important that the Committee take a stand. They are shaping the foundation of acceptable behaviour around the scheme. By ignoring it they’re tacitly approving both the breaching of by-laws and the aggressiveness of the response.

A more effective responsebody corporate dispute

I’m not suggesting that the Committee should verbally attack the Secretary here, or the Caretaker for that matter, particularly not in the minutes for all the lot owners to see. That sort of behaviour will likely inflame the matter even further.

It is however appropriate for the Committee to note that all by-laws must be followed.

It is appropriate for the Committee to reconfirm that the Caretaker is expected to police the by-laws.

It is appropriate for the Committee to condemn any violence, both physical and verbal, without making a determination of who is at fault.

It is appropriate for the Committee to discuss matters with the Secretary and the Caretaker at some stage in the future, or otherwise indicate that the matter is serious and needs to be resolved quickly.

In this way they signal that the Committee is in charge, that by-laws need to be followed and that all lot owners are equal. They also set solid boundaries regarding acceptable behaviour.

Is this really a problem?

In reality this is a small matter that may or may not have any relevance to the future operation and living in this body corporate.

In the context of a Strata Report it was one issue to be read in conjunction with many others to help the lot owner orientate themselves to the scheme and decide whether or not it’s for them.

What I really wanted to demonstrate here is how small seemingly isolated body corporate dispute has wider implications for the scheme, particularly in terms of leadership. Strong, even-handed leadership makes a lot of difference.

THE BASICS OF BODY CORPORATES

A little knowledge can go a long way


I see so many stressful and frustrating issues in body corporate records that result from simple misunderstandings it hurts my head. If I could do one thing to help it would be to teach everyone the basic rules, so they can avoid all these dramas.


With that in mind I've put together a short eBook that sets out the basics everyone owning in a body corporate really should know. It won't make those big issues go away, but it will give you a firm grounding from which to communicate.


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Comments

  1. Ashleigh McGinn says:

    i am an owner occupier of a Unit in Qld. Yesterday I received a letter from our Body Corporate Managers, saying the problem between my unit and another required mediation and was not their problem. Okay, except I don’t know what they are talking about: no-one, [the tenant or the owner of the other unit, the Body Corporate Management Co., the Body Corporate Committee or the On-site managers [who are the rental agents for the other unit] has/will let me know what the problem is! The on-site managers said “Just forget about it – it might have been a complaint that I’d opened his garage door [I hadn’t] or that he thought my garage had ants/white ants/cockroaches [they weren’t sure which it is] which were getting into his unit, or something. I asked could I have a copy of the complaint, and they said no, because of tenant privacy. So I approached the unit tenant, and being aware he has mood swings, asked if he had a problem and what could I do to fix it. He ignored me. I sent an email to the BC Manager asking for clarification and have received no reply.
    It is like being in a rather unfunny episode of Monty Python! How can I remedy the situation? If there’s a problem I want to fix it, and go back to enjoying my unit in peace.
    Surely if there’s a complaint against me, the normal routine would be for the unit”s owner or agent to let me know there’s a complaint and what that complaint was. I understand sometimes the identity of the complainant may be withheld, but in this instance I’ve been informed of the identity of the complainant but not what the complaint is. HELP!!!!!

    • Hi Ash

      I actually wrote a comment on your previous comment this morning.

      Its not much of a dispute if they won’t tell you anything about it. I’d say they may have made an error. I’d let it go and wait and see what happens.

      If you feel you must know you can always search the records of the body corporate and maybe find the complaint there. Keep an eye on your committee meeting minutes as well as something may come up there.

      If the issue is not within the body corporate remit then I’d say it’s a conflict of some other sort. Maybe he’s just taken against you for some reason. There’s not a lot you can do about it.

  2. We currently have a bc with 4 units. Two of us have received abusive paperwork from the secretary/treasurer because we disagreed with the minutes provided after our Agm. This was brought to the attention of secretary/treasurer by way of written advices to him. Since that time we have both received an avalanche of breaches and further abusive paperwork. I would like to know if there is a section in the Bc act that provides for this abuse of position and bullying. We currently are attempting a conciliation with the commissioner and some advice would be appreciated.

    • Hi Kerri

      Oh dear, this is a difficult situation. Unfortunately legislation assumes that everyone will be reasonable and act like a grown up which is seldom the case.

      I don’t know of any part of the legislation that deals with this stuff but there is plenty of precedent through Adjudicators decisions. The Adjudicator can order, and has in the past, that correspondence from an owner can be no longer than one page and only be received once per quarter. The committee is officially forgiven from reading anything else.

      Its a different situation here of course because the person doing the wrong thing is a committee member and is harassing (I assume) non committee members. The body corporate is at all times required to act reasonably and this sort of behaviour is unreasonable. The body corporate is not a tool for controlling others. And abusive paperwork is never acceptable and always subject to defamation rules.

      Which is not to suggest I think you should escalate the issue. Quite the contrary. I think the goal here should be to bring things back to a more even keel so that you can live together with a minimum of issues.

      What is the main problem? What would be liveable for you? Try and get an idea of what solution you would like, particularly going into Conciliation. If you know your priorities then it puts you in a stronger position to negotiate, which is what this is going to take.

      To deal with the breach notices: I would write back refuting them and asking the Treasurer to desist, politely if you can manage. It’s most likely not going to help but it will make you look reasonable and give you a paper trail that you’ve not just ignored the issue.

      You could call an EGM (50% of owners required) and vote on whether or not to remove the person as Treasurer/Secretary. Beware, this might not be successful and either way will escalate things.

      Start another Adjudication application regarding the abuse of power. Seek an order that this person is not to contact you directly. Actually talking to the Office Commissioner BC about this is a good idea. There might be a way to fold it into your existing application.

      I feel for you Kerri. Dealing with unreasonable people is unpleasant and frustrating. Remember if you feel physically threatened at any time call the police. Otherwise try to remain calm and systematically refute the issues that matter (ie the breach notices) by polite rejection or stopping the activity, whichever is relevant, Refuse to engage on the rest.

      If you can’t overlook it consider seeing a Solicitor to get them to write a letter asking it to stop.

      I know you’re most likely hurt and angry and that is hard to get past. I’d suggest a long term view here though; even when this matter settles down you still need to live in proximity to this person. An wary armistice is a better idea than all out war.

  3. Sue Davies says:

    Great article – thanks.
    I chair a BC committee in an apartment building with 255 lots.
    We are trying to write a guideline for lot owners contemplating installation of hard floors and I wonder if you have an example for me. I am more than happy to provide you a copy of my final draft for comment.
    Some of our committee members are complaining that we are being too heavy handed and worry about the consequences of setting acoustic stands (even though the standards we have set fall with the Australian Acoustic Engineers guideline).
    I hope you can help.

    • Hi Sue

      I must admit I do agree with your other committee members. By-laws can be registered but that does not mean that they are enforceable. Same with guidelines. They have to be ‘reasonable’ which is a subjective test at the best of times.

      Consulting a strata solicitor is a better idea. The committee should be able to pass a motion to get advice at body corporate cost.

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