Unit News Online - UOAQ OCTOBER

The official newsletter of Unit Owners Association QLD MARCH 2011OCTOBER 2012

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EST.1978

UOAQ propose a solution for North Queensland Unit Owners Insurance

to be released soon.

UOAQ building

members to benefit

uoaq.org.auUnitNews October 20122

BrisbaneP 3220 0959 or www.uoaq.org.au and request to communicate to a particular person Sue Ekert, Bob Boundy, Elle Young, Paul Cassels.Published by Unit Owners Association QLD

Editor Paul Cassels

Gold CoastWayne Stevens, Greg Carroll, Roger Dearing

Art DirectionDan Hancock - P 3162 8823 E [email protected]

Web DevelopmentJohn Connole - P 0439 879 740 E [email protected]

Help for MembersMembers of the UOAQ are welcome to contact committee members of the association for any help on any body corporate matter.

SponsorsWe appreciate the support of our sponsors to help us do the work we do. To become a sponsor of UOAQ, please contact Paul Cassels on 3220 0959

Unit Owners Assocation QLD6th Floor. 333 Adelaide St, Brisbane Q 4000E [email protected] P 3220 0959uoaq.org.au

DisclaimerArticles contributed to this newsletter are published as a service to members and do not necessarily reflect the opinion or policy of this Association. To contact the committee of the UOAQ for assistance with a body corporate matter please e-mail [email protected]

www.uoaq.org.au

Unit Owners Association QLD

yourstratamanagement.com.au

Coralie Mott (BA Dip Ed, Cert IV in BCM)Director and Body Corporate Manager

Suite 35, Level 6. “Northpoint”231 North Quay Brisbane QLD 4000Telephone 07 3211 4445Fax 07 3211 4410Mobile 0419 741 066Email [email protected]

CTS Management

From the Editor Paul Cassels

Strata Inspections and Reporting

Quality BuildingManagement Pty Ltd.Quality BuildingManagement Pty Ltd.

Hartley’s Body CorporateManagement

Self-determination is not necessarily the only right of the people of a nation as a whole. Australian law increasingly recognises that the Australian people are the ultimate source of authority under the Australian Constitution. Similarly, Australian law increasingly recognises the relationship between governments and the people as a relationship which has political (and sometimes legal) obligations of trust, confidence, responsibility, and accountability.

Moreover, all governments in Australia hold and exercise their power on trust for the benefit of the people. This creates political obligations if not legal obligations. In matters of public policy, various notions of ‘the public interest’ guide government action. All of these things can have a direct or indirect impact upon rights in legislation, policy-making, and government administration.

Queenslanders’ Basic Rights Page 23Everyone in Queensland should be aware of the basic importance of the people and their rights in the political system. Former Chief Justice of the High Court, Sir Anthony Mason, said in 1992 that:

• our democracy means ‘government by the people through their representatives’;• because of the Australian Constitution, ‘elected representatives exercise sovereign power on behalf of the Australian people’ and ‘exercise their

legislative and executive powers as the representatives of the people’; and• ‘in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act’.

This is a powerful statement about the Australian people and their legal status. It has wide-ranging implications. The primary place of the people in Australia’s and Queensland’s systems of government also generates political and possibly legal obligations of responsibility and accountability in the exercise of government power. Those obligations are owed by governments to the people as a whole.

On a recent study tour of Europe and Russia I had many meetings with unit owners’ organisations, we had open and frank discussions. When a Russian Unit Owner representative said your laws governing CTS schemes in Queensland are “Legalised corruption” it shocked me. He said and I quote “this corrupt practice would be stamped out here in Russia” and I agree it should be stamped out in Queensland as well. Please stand against the worst laws in the world. Say NO it is not good enough.

Fix it CAN DO!

Right of self-determinationSelf-determination means the right of all peoples sharing certain racial, cultural, or other features to be legally recognised and to manage and govern their own affairs. It involves questions of self-management, self-government, and sovereignty. Some aspects of self-determination can be achieved within existing legal and political processes, and some would require constitutional change—for example, legal recognition of a self-governing Indigenous nation within Australia. [Article 1 of the ICCPR recognises the right of self-determination for all peoples to determine freely their political status and their economic social, and cultural development. Article 1 of the ICESCR recognises this right too.]

Rights of the people

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uoaq.org.au October 2012 UnitNews 3

A recent Queensland Supreme Court decision has highlighted the importance of conducting sufficient due diligence on common property ownership rights and the use of private car spaces in multi-use developments.

The Court ruled that a plaintiff commercial body corporate had not acquired an interest in a common property car park complex belonging to some of the residential bodies corporate. This was because a resolution passed by the single nominee developer (before any unit sales had settled) was a “fraud on the power’’ due to its failure to take into account the lawful interests of the residential bodies corporate.

It was also held that a statutory right of user over the property was not to be granted because of relevant strata title legislation already being in place.

This decision reminds prospective purchasers to ensure they are receiving what they think they are paying for, and that courts will not allow body corporates to rely on the Property Law Act where the subject is covered by relevant strata title legislation.

Gadens acted for the successful defendants in this matter.

12/10/2012 Quick News

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Go to www.insuranceguys.com.au to get a quote!

We specialise in insuring buildings over $2million, by providing:

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Advice about your existing insurance program and recom-

mendations where we feel your current cover is inadequate.

Online quotes get a 25% rebate of commission directly back

to your Body Corporate insurance premiums.

Professional management of claims.

Fraud on the Power Decision by Queensland Supreme Court

uoaq.org.auUnitNews October 20124

Quick News

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For Professional, Friendly assistance and quotes call

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Sinking Fund ForecastInsurance ValuationBuilders WarrantyCondition AssessmentsSafety Risk ReportsAsbestos ReportsFire Safety ReportsAnd much more

Strata Inspections and Reporting

Quality BuildingManagement Pty Ltd.Quality BuildingManagement Pty Ltd.

Caretaker Duties Valuations and Tenders

Are you a member of a body corporate and concerned about the level of remunera-tion paid to your resident unit manager?

Does your body corporate wish to call tenders for the caretaker duties?

Our company has prepared numerous valuations of Caretaker Duties for buildings from Port Douglas to Coolangatta. We have experience with large hotel style com-plexes of three hundred units right down to small boutique developments of less than fifty units for both valuations and a calling of tenders.

For a fixed fee quotation or to discuss these specialist valuation services call us on

1800 808 991 or email [email protected]

Leary & Partners

1. Unit owners claim the right to employ building caretakers and letting agents on such terms and conditions as the Body Corporate may determine from time to time by democratic vote of the owners in accordance with the contract employment laws of Queensland.

2. The Body Corporate claims the right to determine by democratic vote how its building is used to best preserve the living standards of the owners, considering the amenity, level of health and safety commensurate with community expectations in accordance with human rights and the building laws of Queensland.

3. Unit owners claim the right through their Body Corporate to enter into common law contracts of employment and termination of contractors.

4. Unit owners claim the right to be treated equally and on the same basis of costs for services and rates as single dwelling owners in the same local government area.

5. Unit owners claim the right to be immune from penalties that do not apply equally to all members and contractors of the Body Corporate.

6. Unit owners claim the right to Adjudicators that are subject to standard rules of the legal profession to give full reasons for decisions and who are subject to review of points of fact and law by their immediate superior or higher authority.

7. Unit owners claim the right to Body Corporate Managers who are licensed and who have the same liability for accountability and standards of service as financial advisors.

8. Unit owners claim the right to legislation that is based on determinable fact.

9. Unit owners claim the right to be immune from retrospective legislation not complying with the Legislative Standards Act 1992.

10. Unit owners claim the right to first ranking legislative protection of their interests in running and controlling their building.

Unit Owners Claim of RightsWhereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

United Nations Charter on Human Rights

The Unit Owner’s claim for rights is predicated on the belief that the Unit Owners of Queensland have the same rights and liberties as all other building owners in the state of Queensland and the Commonwealth of Australia.

uoaq.org.au October 2012 UnitNews 5

uoaq.org.au

Strata Managers – A Cautionary Tale

- Insurance policies fall due just before an AGM - This gives the impression that as the policy has renewed and unit owners are unable to place insurance until the policy ends. Most insurers will refund the unused portion of your premium if you decide to take up another quote and cancel your current cover mid-term. This information is displayed in their policy wording. If your insurance is due before an AGM, you may also consider moving a motion to make sure it is due after your AGM so that it is easier each year for unit owners to move motions in relation to your insurances and make changes where appropriate.- If your strata manager comments that the policy they are recommending has better coverage than an alternative we have recommended, ask them to advise what about the policy is better. Some of our clients have expressed how their strata manager makes similar comments, but are unable to substantiate further.- If your strata manager has the opportunity to see quotes we have provided and our quotes are more competitive (or lower than the renewal offered last year), it is likely they will take our quotes back to their insurer to match or offer slightly cheaper so they can continue to receive a commission. If your current insurer has been overcharging you in the previous years, you should consider if in principal they are given the opportunity to continue doing business with you and see other quote options? - Some of our clients have also advised their strata manager has further threatened to not provide claim service if the insurance is not arranged through them. We offer a complete claims service as part of arranging your insurances and all we need is someone to arrange access to your property to let trades people in to do repairs if you claim.- We have also heard from our clients, where strata mangers threaten an increase of property management fees if insurance is not placed via them. If your strata manager is threatening an increase in fees, it may be worthwhile considering getting quotes from other property management companies to manage your property.

As we do not get the opportunity to see other insurance quotes issued, we are accountable each year to ensure you have the best possible policies at competitive premiums. Whilst there are good strata managers out there who are truly looking out for the best interests of their clients, we provide this information as more of a cautionary tale for you to assist you in your decision. If your current policy is the most competitive, you can choose to appoint us to manage your current policy to avoid any conflicts of interest, this is at no extra cost to the body corporate.

COMMUNITY LIVING SOLUTIONSReducing Costs & Increasing Value for Unit Owners

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If your insurance is arranged by a strata manager, they are likely receiving some form of commission for arranging your insurance. We have had many clients comment on conflicts of interest and also express concern that they feel the interests of their strata manager receiving a commission, are put before our body corporate and unit owners interests. The Insurance Guys disclose all fee’s and commissions upfront and have many insurers who can issue alternative quotes if your current insurer is no longer competitive. Our duty to you is to provide the best offer each year and not just deal exclusively with one or two insurers.

Here are some common tactics our clients have told us their strata manager has engaged to try and lock them in to arranging their insurance:

uoaq.org.auUnitNews October 20126

Feature Story

1. BCCM (AM) S.3 ACT S 21 - The UOAQ requires this section to be changed in the ACT.

2. ACT S.35 (1): - The UOAQ requires this section to be changed in the ACT.

3. ACT S116 - The UOAQ requires this section to be changed to delete reference to

4. ACT S.123 - The UOAQ requires this section to be removed from the ACT.

5. ACT SECTION 127 - The UOAQ requires this section to be deleted from the ACT.

6. ACT S.137 - The UOAQ requires this section to be removed from the ACT.

7. ACT S.138 - The UOAQ requires this section to be deleted from the ACT.

8. BCCM ACT SECTION 146 - The UOAQ requires this section to be removed from the ACT.

9. BCCM ACT SECTION 180 (3) - The UOAQ requires this section to be removed from the ACT.

10. BCCM (AM) REG 123 - The UOAQ requires this section to be changed in the ACT.

11. BCCM (AM) REG. S129.- The UOAQ requires Division 8 to be removed from the ACT.

12. ACT S.130.S135. - The UOAQ requires this section to be changed in the ACT.

13. BCCM ACT S.129 - CLEAR STANDARDS - Termination of Body Corporate Manager (BCM) contract.

14. BCCM REG (AM) SECTION 33 - The UOAQ requires this section to be changed in the ACT.

15. BCCM REG S.113. The UOAQ requires this section to be removed from the ACT.

16. BCCM ACT. S4. a, b, c, e and g. MANAGEMENT RIGHTS

17. ADJUDICATOR ACCOUNTABILITY

18. ACT. DIVISION 8 SUBDIVISION 1 SECTIONS 136, 137,138, 139,140,141, 142,143,

144,145, 146, 147, 148, 149, 149A, and 149B should be repealed.

19. BCCM S 12(1)(b) - The UOAQ requires this section to be removed from the ACT.

20. BCCM S 121(2) - The UOAQ requires this section to be removed from the ACT.

21. BCCM(AM) Reg s.150 (SM,s.152) - UOAQ requirement is recommended to be

mandatory open tender process.

22. Levy surcharge on short term rental units – The UOAQ recommends introduction.

23. Draft new Legislation where a BC chooses an alternative management option to

current – the Act is ‘silent’ and inadequate when an existing Agreement expires.

24. Selection of Insurers - UOAQ requirement is recommended that CTS schemes be

treated no different to normal dwellings in QLD.

Index For Unit Owners Association Queensland INC changes to the BCCM Act

uoaq.org.au October 2012 UnitNews 7

Feature Story

■ Financial Management ■ Agendas & Meetings ■ Administration of your Scheme ■ Maintenance ■ Dispute

Resolution ■ Compliance

Hartley’s Body Corporate Management

‘Looking after all your Body Corporate Needs’

UOAQ changes required - sections of the act

I. The act states the legislative policy.

II. The regulation defines implementation of

the policy.

III. Is the regulation consistent with the stated

legislation and act?

IV. Is the act and regulation in compliance

with the stated objectives of the ACT?

V. Is the legislation in conformity with all

other legislation, the legislative standards

act and case law?

BCCM ACT OBJECTIVES

(a) Balance the rights of individuals with the responsibility for self-management

as an inherent aspect of community titles

schemes;

(b) Promote economic development by

establishing sufficiently flexible

administrative and management

arrangements for community titles schemes;

(c) Ensure that bodies corporate for

community titles schemes have control of

the common property and body corporate

assets they are responsible for managing

on behalf of owners of lots included in the

schemes;

(d) Provide an appropriate level of consumer

protection for owners and intending buyers

of lots included in community titles schemes.

While presenting the following items for consideration, and believing that each and every one is a detriment to consumer protection. The UOAQ is not recommending any retrospective action that would disadvantage any party to the Act or Regulations. Where reference is made to the Accommodation Module the intent is that the Standard Module is included wherever there is parallel legislation.

uoaq.org.auUnitNews October 20128

Feature Story

1. BCCM (AM) S.3 ACT S 21 - The UOAQ requires this section to be changed in the ACT.

Reason

Allocation of the management module for a building rests on a developer’s intent (thoughts)

for the use of the building.

Proposal

The management module should be aligned with the building use as defined in the building

code Australia building classification.

•Class 2 buildings - Standard module,

•Class3 buildings - Accommodation module

2. ACT S.35 (1): - The UOAQ requires this section to be changed in the ACT.

Reason

“Common property for a community titles scheme is owned by the owners of the lots included

in the scheme” that is the unit owners own the building? Why then cannot the body corporate tender the caretaking and letting rights on terms agreed

by the unit owners?

The current inflated cost of management rights is impacting on caretaking and letting expenses, making the cost of unit ownership UNSUSTAINABLE and this will totally destroy the Tourism Industry.

Proposal

The body corporate be allowed to tender or contract the management rights.

3. ACT S116 - The UOAQ requires this section to be changed to delete reference to Division 8

of the ACT.

Reason

If the caretaker does not own the caretaker’s unit in the same name as the caretaking contract,

the person owning the unit must enter into a deed agreeing to sell the unit if the caretaking/

letting rights are transferred. But S.116 that requires the deed to be in accordance with

Division 8 of the act. That is the section that gives the caretaker 9 months to move on.

Proposal

Delete reference to Division 8

uoaq.org.au October 2012 UnitNews 9

Management Rights | Levy Collection | Dispute ResolutionCommunity Management Statements | Review of By-laws

Establishment of Schemes | Construction DefectsLot Entitlement Disputes | Exclusive Use

Conveyancing

BODY CORPORATE MATTERS?ENGAGE THE BODY CORPORATE LAWYERS

[email protected]

T: 07 3393 0433 F: 07 3393 0533

Caretaker Duties Valuations and TendersAre you a member of a body corporate and concerned about the level of remunera-tion paid to your resident unit manager?Does your body corporate wish to call tenders for the caretaker duties?Our company has prepared numerous valuations of Caretaker Duties for buildings from Port Douglas to Coolangatta. We have experience with large hotel style com-plexes of three hundred units right down to small boutique developments of less than fifty units for both valuations and a calling of tenders.For a fixed fee quotation or to discuss these specialist valuation services call us on 1800 808 991 or email [email protected]

Leary & Partners

Feature Story

4. ACT S.123 - The UOAQ requires this section to be removed from the ACT.

Reason

Banks have an interest in the caretakers business protected under S.123 of the act. Section 123, the body corporate cannot terminate the caretaking contract for 21 days after giving the

bank advice of the termination.

S.126. The bank can then appoint an administrator to take the business. The act is weighted

against the owners in favour of an outside party.

Proposal

Protection for financiers be deleted from the Act. There is no reason why management rights

business should not compete with every other small business for funding.

5. ACT SECTION 127 - The UOAQ requires this section to be deleted from the ACT.

Reason

Specifically bans the body corporate from entering into any agreement with the bank relating

to the contract. The body corporate should be allowed to deal with financiers

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uoaq.org.auUnitNews October 201210

Feature Story

CTS Management

Proud Member of:Contact our o�ce for an Obligation Free Proposal

Suite 35, Level 6, "Northpoint", 231 North Quay Brisbane Qld 4000

Phone 07 3211 4445Fax 07 3211 4410Email [email protected]

www.ctsm.com.au

“Performance Based” Management SolutionsOur Professional Body Corporate Management Service includes:

- Performance Based Management Fees- Maximising Returns on Surplus Funds with Cash Flow Management- Formulating Cost E�ective Budgets- Conducting E�cient Meetings- Management of Insurance Quotations & Claims- Extensive Industry Knowledge & Experience- Transparency & Accountability For All Owners

Feature Story

6. ACT S.137 - The UOAQ requires this section to be removed from the ACT.

“The provision of a letting agent authorisation or service contract providing for its transfer or termination are void to the extent the provisions are inconsistent with this division.”

Reason

LEGISLATIVE STANDARDS ACT 1992 - SECT 4 THAT REQUIRES THAT NEW LEGISLATION:

“DOES NOT ADVERSELY AFFECT RIGHTS AND LIBERTIES, AND IMPOSE OBLIGATIONS,

RETROSPECTIVELY;”

7. ACT S.138 - The UOAQ requires this section to be deleted from the ACT.

Reason

Before raising and issuing the code contravention notice, the body corporate must hold an

EGM and obtain a secret vote ordinary resolution to approve the issue of a code contravention

notice.

This is not consistent with (Reg (AM) S. 129 that gives the committee the authority to raise a default notice.

Continued from Last IssueBRISBANE - GOLD COAST - REDCLIFFEWorking with

owners to createhappy, healthy

and harmonious communities.

[email protected]

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www.capitolbca.com.au 1300 55 10 19

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EST.1978

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BCMCharges $5,282

14%

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