Over the past months smart strata has presented a series of informative articles on by-laws, their importance, and the procedures and responsibilities involved in enforcing by-laws. There have been at least 2 articles from the Commissioner for Bodies Corporate (personal name (s) not supplied.)

In an article around mid-July the Commissioner stressed the responsibility of the committee (who are volunteers and not actually even required to be onsite regularly) with respect to by-law enforcement and the very limited responsibility of the paid caretakers (onsite managers) whatever term you prefer to use.

Now this person (or persons) has purchased 2 very valuable agreements. One agreement has conditions outlining general managerial/organizational responsibilities to the Body Corporate and the other outlining the rights and responsibilities of this person as a “letting agent.”

At that time I personally wrote to the then Commissioner and asked if she could appreciate that the caretaker was also most commonly the “rental agent” and received substantial commissions for rental services and under most relevant agreements and most standard by-laws “should” be considered as being responsible for the general compliance of the ” invitees” (tenants) in the rental pool at least to the degree suitable for building safety and the general peaceful enjoyment of those resident in other lots and while on common property. On a practical level, the lengthy process of issuing “breach notices” is totally irrelevant when short term tenants are involved. At the coal face it is often short-term tenants that cause disproportionate problems and disruption due to by-law breaches.

I received an unimpressive reply from a staff member telling me absolutely nothing of any value or substance but indicating that letting agent responsibility would be covered by “the Residential Tenancy Act” and that comment re this Act was not possible. On investigation, I was informed that short term holiday rental (generally considered under 6 weeks but longer terms can apply) is not covered by the Residential Tenancy Act as holiday rental does not involve written agreements/bonds etc. So much for that information as received!

In the latest smart strata article, the commissioner again provided information exactly as quoted below.

“A body corporate is responsible for enforcing its own by-laws. Owners and occupiers can also take action to enforce the by-laws. The steps that must be taken depend on who is enforcing the by-laws. See how to deal with by-law breaches for schemes registered under the Specified Two-lot Schemes Module.”

The information that followed was from the regulations relevant to the standard or accommodation modules and, in any case, presented no new information.

Unfortunately, the “Specified Two-lot Schemes Module.” does not have the usual Body Corporate structure….. the formal votes at general meetings, the references to the committee are not part of this module. The provisions of this module are simply for 2 owner meetings and signed and written agreements between the 2 lot owners or their representatives when appropriate. The detail of the information provided by the commissioner is simply not relevant to a 2- lot scheme as per the stated aim.

If you doubt the accuracy of this google “your rights crime and the law specified 2-lot schemes module” exactly as stated by the commissioner

Given this error in the article and the confusion that must result, it is impossible for the article to have any credibility, and, in fact, it must surely limit any confidence in the Commissioner or the Office of the Commissioner. Given the reply to my original concerns and now this article from the commissioner, it is no wonder people have serious concerns with the governance of the strata industry.

So I hope the upcoming Seminars address this latest confusion and deal not only with the theory but also with the problems of compliance with by-laws on an everyday basis and recognize that the “letting agent” does have significant responsibility for the tenants for which commission is received….at least to the degree of providing by-laws to all rental pool lots, explaining parking conditions, explaining the basic rules re pets and public safety (including in the pool and gym areas) and in ensuring to a fair and reasonable extent that the rental agent needs to accept the responsibility for the tenants respecting the rights of all occupants to the quiet enjoyment of both their lots and the common property and adherence to by-laws.