Commissioners Corner – Tenant Discrimination (QLD)
When we talk about body corporate matters, there is one group that sometimes gets left out of the discussion – tenants.
To be more specific, the Body Corporate and Community Management Act 1997 (the Act) does not actually refer to tenants, it refers to ‘occupiers’.
For the purposes of this article though, I’ll refer to tenants and think of them as people holding a lease for a lot in a scheme. I will do so because I want to address a number of myths about the interaction between tenants and the body corporate.
My Office hears and sees these ‘myths’ during both queries and disputes.
Myth: an owner has more rights than a tenant, given they pay levies and own the lot. So it’s ok for the body corporate to not allow a tenant to do some things (e.g., access the pool) and restrict this to “owners only”.
Reality: the Act makes clear that any by-law which discriminates between different types of occupiers is an invalid by-law. So if a body corporate is, for example, placing a sign on the swimming pool or other common facilities saying they are “not for tenants” and basing this on their by-laws, it would follow that by-law is an invalid by-law. Remember that common property and facilities are for the benefit of all – hence the term “common”. A tenant takes over the owner’s right to the use or occupation of common property. An occupier who is an owner has no greater rights of occupation than a tenant.
Myth: as a body corporate manager (or caretaker), I am appointed by and in contract with the body corporate. So that means I cannot deal with tenants, respond to their queries or provide them the type of service I might provide an owner.
Reality: a body corporate manager or caretaker acts on behalf of the body corporate and takes their instruction. It therefore follows that in some instances, these contractors would have a need to interact with and respond to tenants. For example, a tenant may satisfy the definition of an “interested person” under the Act and thus be entitled to seek – upon payment of a prescribed fee – body corporate records, which may be in the possession of a body corporate manager.
Similarly, a caretaker provides that caretaking service for the entire scheme. So if a tenant reports damage to common property, for example, the caretaker should be responding to that report in the same way they might respond to an owner.
Myth: if there’s a maintenance issue at the scheme and it’s having an impact on a tenant, then it’s up to their real estate agent or landlord to deal with it, not the body corporate. The tenant is not allowed to talk to the body corporate manager or the committee.
Reality: maintenance responsibilities are often the subject of dispute and it is not always ‘cut and dried’ whether it is the responsibility of the body corporate or the lot owner to attend to repairs and maintenance. If it is a body corporate responsibility, then under the Act the body corporate is required to attend to it, regardless of whether it is having an impact on a tenant or an owner. It is quite appropriate for a tenant in such a situation to approach the body corporate (via its body corporate manager, for example) about the matter and this is particularly relevant in the event of an emergency repair.
There is no legislative provision that states a tenant is not permitted to communicate with the body corporate or its agents.
Myth: there’s a by-law breach occurring at the scheme and it’s having an impact on a tenant. Because it’s only affecting a tenant, the body corporate isn’t required to enforce the by-law.
Reality: the body corporate is required under the Act to enforce its by-laws. By-laws apply equally to all occupiers, whether they are tenants or owners. A tenant is therefore able to approach the body corporate and request the body corporate enforce its by-laws. If the body corporate decides not to take action about the alleged breach, the tenant may then be able to apply to my Office to pursue a by-law dispute.
The overarching message out of these myths and their realities is that a tenant has, under the Act, a number of rights and responsibilities upon which the body corporate is legislatively required to act. The fact that a tenant doesn’t own a lot does not change these rights and responsibilities.
My Office can only provide information about the Act and it cannot provide information about tenancy-related legislation. For queries about tenancy-related legislation, contact the Residential Tenancies Authority (RTA) at http://www.rta.qld.gov.au/. You might particularly be interested in a number of webinars my Office has been a part of with the RTA, on body corporate issues, which can be accessed at https://www.rta.qld.gov.au/About-the-RTA/Community-education/Webinars.
For further information and for general queries about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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I would just like to compliment the Commissioner, Chris Irons, on delivering articles that are extremely helpful to clear away those grey areas that cause confusion. Just while I have the moment, also compliments to the staff taking those many curly questions through the helpline, the professionalism and empathy shown flows through to the Body Corporate Sector. Well done!!
Hi Errol, Thank your for your kind feedback and it’s pleasing to hear that you are finding the articles helpful.
Comissioner, you may like to have an article on the code of conduct that specifically applies to Body Corporate Managers and resident managers. The Body Corporate manager should know details of the BCCM Act, adjudication decisions made on or applicable to the property they manage, and have knowledge of other relevant legislation. I have found that representatives of one of the largest Body Corporate Manager Groups are ignorant of the BCCM Act and particularly the Code of Conduct. I despair about the knowledge of managers from smaller groups.
Hello Peter and thanks for your comment. I will make a note of your suggestion. In the interim, if you have a particular matter that you need information on, you might like to contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate.
What is the difference between a guest and an invitee in real everyday terms ? If there is no real difference, why is there always use of the two terms in one sentence or used interchangeably. I refer particularly to bylaws where the terms owners, occupiers, proprietors, guests, invitees are used at will throughout bylaws.
Hi Denise and thanks for your comment. You might like to contact the Information Service of my Office to get some information on these topics. They can be contacted on 1800 060 119 or http://www.qld.gov.au/bodycorporate
Hello, I have been trying to obtain documents from my body corporate now since April 2016. They either refuse to give them to me or completely ignore me. I have put in applications to the Commissioners Office around this issue that have been rejected.. It is of great concern that even though Section 205 of the Act specifies that an owner or interested person has right to inspect and obtain documents they are still not given and even worse that when writing to the Commissioners Office your application may still be rejected as has happened to me previously. I currently have an application in yet again on the same issues i have been having over many years. I have made phone calls, sent emails, been into the office and have even been told the records are not held at the Management Company. Im feeling what rights do we have as owners of a Lot? I would be interested in your reply please,
Hello Lisa and thanks for your comment. It’s not appropriate for me to comment on any current or past applications with my Office. If you haven’t already done so you might like to call our Information Service on 1800 060 119 for some further information.