Dealing with excessive owner emails
Do you have an owner that writes excessive emails about all sorts of issues to everyone on the Committee? You know the sort of owner we mean, the one that dashes out 500 words at 2am on a Saturday morning demanding a response “this instant!”.
The Body Corporate has power to make by-laws that relate to the use and enjoyment of the lots and the common property.
It is contrary to the Act to create a nuisance or to unreasonably interfere with another owner or occupiers use of their lot or the common property.
Committee members are volunteers and in the overwhelming majority of cases are not paid.
It is a common occurrence for there to be at least one prolific email or letter writer in a community titles scheme who almost inevitably ends up complaining about just about everything.
The Body Corporate’s job is to administer the Community Titles Scheme in accordance with the Act. It’s not the job of the committee, or any member of the committee, to be abused, insulted, demeaned or harassed.
Whether you’ve got a by-law or not which prevents that sort of behaviour a lot owner engaging in it can be pursued for creating a nuisance or an unreasonable interference as described above.
It is a relatively straight forward process, however, to introduce a by-law which prohibits the offensive behaviour and then to use the by-law enforcement process if there is a breach.
As with any other by-law, a breach may allow the issue of a by-law contravention notice followed ultimately by proceedings for a private prosecution in the Magistrates Court. Aside from being very embarrassing for the lot owner concerned, fines of over $2,000 may be imposed upon the offending individual.
Well drafted by-laws give the Committee the power to introduce restrictions, including for example in relation to the volume and type of correspondence that the committee may receive and when.
This article was contributed by Michael Kleinschmidt of Stratum Legal.
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Typical Galati to assist a system that has failed for some 70 years.
The mechanism to try and have things properly dealt with are a costly and unreliable disappointment in most cases.
Community Title bumbles on for the simple reason it is seen as a golden egg for the Legal profession and is groomed in that direction , now more than ever.
If possible , steer well clear of it., In over 30 years experience , I note , Serious problems have arisen eventually, in every complex I have been aware of..
I write without malice and because I have been asked to leave a comment. Your words above are interesting, Mr Kleinschmidt; however, you do not cover ‘the other side of the fence’, so to speak, where: (1) both the Committee and Body Corporate Manager, in a bullying/intimidating manner in breach of the BCCM Act, refuse to answer legitimate B/C questions, even those posed by a Committee Member (such as myself); (2) Executive Committee Members feel they can spend on/authorise a purchase (with the BCM paying the invoice, yet allegedly knowing the situation) as they please, without B/C authorisation and without even first speaking to their fellow Committee Members about the needless purchase (and within a B/C where the Sinking Fund is far too low); (3) Executive Committee Members and those they choose can breach Bylaws with nothing being said/corrected; (4) recorded Minutes can be needlessly/wrongly hostile/humiliating towards financial Owners who ask legitimate questions about their substantial investments within a Complex; (5) recorded Minutes are not a true and accurate record of proceedings and possibly discriminatory/bullying as a result; (6) a Management Agreement can be sent out for an AGM vote with the INcorrect $$ figure within it, without the matter EVER corrected in front of Owners (how can that be legal??–I have been asking and asking since 2009, only to have my emails blacklisted by the non-Owner/non-licensed, yet paid by Owners, BCM); (7) an EGM vote can take place without including the referenced quote with one of the Committee Motions (Committee Motions that all Committee Members do not get to see beforehand), a quote which, allegedly, did not even exist; (8) a financial Owner can be evicted from an Owner-paid Committee Meeting by the non-Owner/non-licenced BCM for asking that it be recorded that a page of her AGM Motions was left out of AGM documentation; (9) the BCM herself rules an AGM Motion OoO (totally in breach of the BCCM Act), and records same in the Minutes??…and on and on and on and on and on it goes, Mr Kleinschmidt, and on and on. Are Owners/other Committee Members supposed to just sit back and cop this type of (frightening) operation on the chin…or should they write letter after letter after letter (really, their only choice) in the hope of getting somewhere? In case you might be wanting to suggest taking matter after matter after matter to the Commissioner’s Office (at personal monetary expense to the Owner, who is possibly elderly; possibly a pensioner, while the BCM continues to be paid no matter what the BCM does), may I tell you here please that ‘my’ BCM once said to me during a Committee Meeting: “Take it to the Commissioner. The company will get a slap on the wrist and so will I. End of story.” He arrogantly looked me straight in the eye as he spoke these words to me, while slapping his wrist in demonstration. Shows how little respect that BCM has for the Office of the Commissioner for Body Corporate–and he can get away with it, no probs. Very frightening Mr Kleinschmidt, very frightening.
Hi Donna, one of the most common problems I see is the conflation of issues until the bundle becomes one big Gordian Knot. Any one of the issues that you raise can be resolved, with the right steps. Temporary setbacks can occur, and the law is sometimes an ass, but in my experience most of the time the right result will come from persistent action (taken, of course, respectfully). I do strongly recommend that you take some legal advice about some of the issues that you have raised.
Hi Max, I think you’ll find that in any group of people, of whatever stripe, who are brought together for whatever purpose, there are going to be, at some stage or another ‘serious problems’. I am always saddened by the accusation that lawyers do a given thing, or ‘allow’ something to continue, only for their self interest. Personally, my almost 20 years of practice have been motivated by a desire to help people solve their problems. As for community title ‘bumbling on’ over one quarter of Queenslanders now live in it and our system is often held up as a leading one. I think that probably speaks for itself.
The whole system has turned into a pile of rubbish. Any body corp problem is really quite simple. Its complicated by the money grabbers.
I hear you Donna.
There is a fundimental flaw in the BCCM system, by legitimizing the silencing of lot owners when there is systemic corruption. There are no real penalties for bad BCMs that collude with certain lot owners to ensure their contract stays in place. Dislodging a BCM that is supporting a corrupt committe is hard.
The usual practice is to “loose” motions or assit in aggressively ruling OoO on a technicality or to only provide advice to favoured individuals and remain silent when there are irregularities.
If you do finally get a GM motion to get a new manager., they will create bogus charges of $1000s as an exit fee and hold your BC records or bank account access to ransom.
We now have a great BCM for over 6 years but being in layered scheme there are mutliple BCMs and individuals change. We now have an ex employee of the corrupt BCM that uses the same sort of tactics. So even swapping contracts does not solve the problem.
Well Michael, many thanks for your article….it really inspired me ….it inspired me with anger and frustration and it certainly inspired me to “hit back” on behalf of the much maligned “letter writers”, who need to be recognized as fully financial members of the body corporate, exercising their democratic right to express their concerns re the building in which they have a legitimate financial interest.
Are you seriously advising Bodies Corporate to stifle this basic democratic right?
In trivializing owner input you have not considered that:
• The concerns may well be based on educated, informed opinions and genuine concerns on issues that are being ignored through self-interest or the ignorance of committees.
• Much correspondence to committees is ignored and must consequently be re-sent.
• The system is largely NOT working at the basic level despite the increase in the number of strata units being developed and despite your assertions re the adequacy of the Queensland system.
• Many committee members fail to obtain the relevant information and knowledge that is readily accessible to them from various online sources including the BCCM.
• We have had property review after property review over recent years with very little basic change or outcomes.
• Many buildings are not being managed in a professional manner.
• Many committees are not open or transparent and the minutes are often non- factual.
If the system was working then we would have far less reason to express legitimate concerns.
You are not in my building (nor I take it, are you resident in one of the many other buildings that have serious issues). You have never attended a committee meeting in my building. You have not raised issues and been totally ignored with no meaningful replies only to have those issues eventually cause financial or safety concerns and subsequently disadvantage the Body Corporate. With respect, you can sit in your comfy office and make these great suggestions but you certainly give the impression that you don’t comprehend or appreciate what is happening at the coal face in many buildings.
These are some core concerns which lead to many of the problems and much of the correspondence:
• Building security, financial issues, errors in invoices, invoices presented multiple times and committee approved, incorrect allocation of funds, parking problems, ignorance of and non-adherence to existing by-laws, and non-enforcement of by-laws.
• The existence of 25 year caretaking agreements, and the “top ups” to existing agreements, are a constant source of conflict, bullying and self-interest in the industry. If such agreements were ever relevant (and I believe they were never relevant in most buildings) they are now totally inappropriate in older buildings where the rental pool has fallen well below 50% but caretakers continue to bully for extensions and where legislation provides inadequate steps to allow buildings to return to the far more appropriate standard module and shorter agreements.
• Caretakers who are totally inexperienced or totally unsuitable for a variety of reasons including the lack of people skills to deal with owners, tenants, contractors and holiday makers are accepted by committees who are “too afraid of the consequences” to refuse such assignments.
• The lot entitlement issue remains a debacle that successive government have created but failed to solve guided by theoretical, impractical legal views as presented in the property review.
• The election of committee members is often influenced by caretakers via the letting pool. The most desirable candidates that have been promoted in our building are new to the building, resident overseas or interstate if possible, rarely onsite, have never attended a prior committee meetings or general meetings before their election, have no idea of by-laws or legislation and no idea of the history of building maintenance and obviously are not “letter writers”.
• Committee members need to appreciate that they represent owners, and not just the caretakers who promoted their election. They need to be willing to communicate with owners, address issues and reply to correspondence……now that is a novel concept?
• The committee in even a small to medium sized strata building must deal with the financial responsibility of both an income and expenditure of around $1 million per annum.
• The attendance of a committee member 4 times a year personally or by a phone connection at a 3 hour long committee meeting, is insufficient commitment to do an adequate job. Any volunteer who is “invited” by a caretaker to apply for a committee position and who thinks that it is a minor commitment needs to re-think, because committee membership, if done responsibly, is a very big commitment of time, complex decisions and a commitment to both communicate and gain reasonable knowledge of the legislation. If you are not prepared to be proactive, don’t volunteer.
• Owner apathy is the biggest problem in any building. Giving a proxy or POA to a caretaker with no appreciation of the value of your vote is gross stupidity. Unfortunately, the great body of owners live in the blissful ignorance until a major issue emerges (generally financial).
Thank heavens for those of us who have invested in buildings and who strive to protect our investments and indirectly the investment of other owners. We attend all committee and general meetings, we submit to the property reviews and any relevant surveys, we communicate with our local State Members to try to obtain legislated changes to advantage all owners, the major stake holders. We even sometimes seek legal advice but above all we exert our basic democratic right to have an opinion in the building in which we have invested.
So yes Michael, lets change the by-laws by all means; eliminate any educated ideas from stakeholders; fine owners for writing to their elected representatives; leave committees safely cocooned in their ignorance; and stifle any chance this industry has of becoming more effective and less corrupt.
Well done!
Sandra (proactive member of the Body Corporate who has made every effort to become strata savvy in order to protect her investment.)
*Surname not for publication
Michael Kleinschmidt seems to want glibly to caricature owners who use email to communicate concerns to their BC Managers or Committees. He seems to portray them as cranks who can, through a “stratght forward” process, be silenced, using nuisance law, or by enacting an appropriare by-law. He tells Max Webster that he (Michael Kleinschmidt) has devoted 20 years in practice “motivated by a desire to help people solve their problems”. His contribution here does not reflect this motivation. To my reading, what he writes is not worthy of the high regard I have for the professional quality and standards I have come to expect and appreciate from Smart Strata contributors.
When considering buying “off the Plan” from a developer of a small Standard Module CTS, I conscientiously read and endeavoured to understand what was contained in the documentation, and the legislation under which it was drafted. I noted and took seriously the warnings on the face of contracts, etc to make sure I knew what Community title meant and entailed in terms of rights and responsibilities, or seek advice if I didn’t. I presumed that others joining me in the Scheme would take it as seriously as I did. I was wrong.
Without going into details, I find myself trying to deal with a dysfunctional Committee that has met formally three times in two years. “Flying minutes” turned up later in the piece, adding to the dysfunction. Cronyism is the culture and, if you are part of the clique, all seems to be allowed. Communication is mainly via gossip sessions. Formal correspondance seems to be ignored as a matter of principle. At least, that is the experience of one not of the clique. Thus, there is repetition and the tone of this may sometimes reflect the frustration.
My endeavour to understand the BCCM legislation had me believing that an onus lay upon owners to self-regulate, i.e. respect the by-laws, endeavour to honour them through compliance, and follow proper process where permits are required. Experience tells me that, in fact, there is a reverse onus where by-laws and procedure are honoured more in the breach, and owners who may want compliance encounter an almost impenetrable, costly jungle trying to achieve compliance.
Repetition, through the BC Manager, using the communications technology now available, is one way of trying to penetrate the jungle. It carries a hope that some Committee members may understand and respect the meaning of integrity.
Michael Kleinschmidt’s contribution can only give solace to the dysfunctional.
Well good morning ladies and gents,
Nice to see that this article generated some lively comment. Of course, none of it yet by committee members on the receiving end of dozens of emails (often making the same or similar point over and over) who come to me harassed, abused and belittled by the very owners that they have given up their own time to represent!
Instead it looks like I have some commentators who are frustrated by their respective situations.
Take heart! The great thing about our system is that you can actually change things, if you are prepared to put the effort in; whether from the inside (bring that case, set a precedent that fixes a problem!) or the outside (educate, agitate, organise; parliament will change the law).
We are almost at the end of a once in a generation legislative review process for property law. Has anyone made a submission? There are still issues that you can have your say on.
Likewise, has anyone joined a body representing owners, such as the Owners Corporation Network Qld? Join. Take your issue forward. Contribute to change.
I’ll always back a good idea that helps solve a common problem, whereas I will rarely empathise with a whinge…
Valuable contributions by those at the coal face.. I have seen the issues raised by other members in the 2 BC’s with which I am involved. It seems not all committee members are aware of these issues or if they are aware, they are not willing or able to do anything about them or they leave BC Darwinism then perpetuates the errant behaviour.
M y Body Corp along with 4 Committee carried out a number job without supply any quotes as a unit holder I requested to have detail of these job
no respond from body corp after several letter still no reply am I breaking any law if I withheld levy payment until Body Corp comply to my request which should have send out to all unit holder
Hi C Chambers,
You need to take legal advice specific to your circumstances.
Speaking generally, refusing to pay levies can be a very expensive decision if it turns out you should have paid.
There have been a number of reported decisions in courts where lot owners have refused to pay levies, because of money they say the body corporate should not have spent.
In those cases, the lot owners have almost without exception been ordered to pay their levies, plus the Body Corporate recovery costs.
The recovery costs can be quite high.
So, think twice about refusing to pay, if you disagree with what the BC has done then consider pursuing that issue and take legal advice.
Regards
Michael