Lobbying (QLD)
Our caretaking service contractor has sent out a letter to all owners asking them to vote for certain committee candidates and to vote to extend the caretaking service contract. Is this permissible under the Act?
While the Body Corporate and Community Management Act 1997 and its associated regulations remain silent in regards to lobbying, it sets out the procedures required for calling and conducting general meetings to support owners making an informed, valid vote.
We have dealt with a small number of dispute resolution applications where it was claimed lobbying had influenced the vote. In each case, the adjudicator either could not find or was not presented with any evidence to suggest that any lobbying which might have been done to prevent a reasonable person making an informed, valid vote. In Macarthur Chambers Residences [2015] QBCCMCmr 252 at paragraphs 26 – 31, the adjudicator dealt with this issue and stated:
“Unreasonable Lobbying
- The applicants state that the caretaker sends emails to owners who have their properties in the hotel pool, managed by her, instructing them how to vote and asking them to support her quest to insert an option to extend or renew the caretaking and letting agreement for a further five years and to elect certain persons to the committee. In addition to sending emails, the caretaker made a follow up phone call, again putting pressure on owners to vote as per her demands. In doing so, she used undue pressure – close to 75% of the properties are in the hotel pool. If an owner does not agree with the caretaker’s demands, the income they are receiving may be affected. The owners may have chosen to vote as per the caretaker’s instructions for fear of losing money. In the applicants’ view, the caretaker’s actions are akin to placing duress on owners. The majority of owners who have their properties under the caretaker’s management voted as per her demands.
- The applicants argue that, in lobbying, the caretaker used for improper purposes, personal information she had access to, due to the nature of the letting agreement, such as emails and phone numbers. This information is not available in the roll for all owners. She unfairly benefited from the information unavailable to other owners who may have had interest in lobbying regarding Motion 12.
- The committee includes in its submission, with the caretaker’s permission, the email sent by Dianne Papendorf to lot owners dated 4 August 2014. The committee points out that it is lacking in demands, undue pressure, duress etc. The committee concludes that they are completely unaware of any evidence that supports the applicants’ allegations, or of any legislative provision that prohibits lobbying. The committee also points out that Greg Kern lobbied lot owners in writing and by phone, with some of the phone calls being made by his secretary. They provide an example of a letter dated 6 August 2014. The submission by the owner of lot 503 states she did not receive any phone calls from Dianne asking for support to vote for anyone at the AGM. She states that “the only requested (more like demanded) support was from Karen Kern for herself and for Julie Stanton to attain the positions which they had nominated for. Julie Stanton has obtained my addresses from some source to send out her dreadful allegations against everyone who stands in her way.”
- Campaigning or lobbying is not specifically regulated by the Act or the Regulation Modules. Even so, this issue has been considered in the adjudication of previous dispute resolution applications. In Ipomoea Court[1], the adjudicator stated “Each lot owner has 21 days’ notice of the motions on the agenda. If he or she wishes to find out more about a motion, he or she may contact the proponent of the motion, or the committee. Lot owners may also canvass others to vote for “their” motion, or to vote in a particular way, and lobby before the meeting. In St. Tropez[2], the adjudicator stated “if an owner disputes decisions made by the Committee majority, they should lobby owners to vote against the motions…It is then for owners to decide which approach they prefer. In Liberty[3], the adjudicator stated there is nothing to prevent lobbying for the election of certain persons to the committee.
- A lot owner lobbying for votes in the election of a person or persons to committee positions and or voting for or against particular motions is not contrary to the legislation.
- I consider the applicants’ assertions in relation to the caretaker placing “undue pressure” on owners in the hotel pool to vote a certain way to be without substance. Further, they are not supported by a single owner submission.”
For further information and for general queries about the body corporate legislation, please contact the Information Service on Freecall 1800 060 119, email bccm@justice.qld.gov.au or visit our website www.qld.gov.au/bodycorporate.
[1][2007] QBCCMCmr 49
[2] [2007] QBCCMCmr 445
[3] [2008] QBCCMCmr 164
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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An excellent article Chris.
Hello Colin, thanks very much for saying so. Feedback is always appreciated.
Would you mind explaining why a caretaker’s contract extension is weighted so much in favour of the Caretaker/Manager.
From an Owner’s and BC perspective, should there not be provision for a compulsory alternative to give owners a chance and choice when assessing new contract conditions weighed up against a current and embedded contract.
Committees are elected each year meaning that their knowledge and experience is guided and influenced by the Manager and Body Corporate Manager unless an incumbent experienced reliable committee can retain their positions and can take control to better manage owner’s outcomes.
To avoid personal agendas and pressures that can be subtly applied to influence such an important decision, would it not be better that a law was introduced that allows all owners to understand their rights and entitlements allowing them to make a consider assessment as to viable alternative contract options.
Hello Keith and thank you for your comment. Body corporate legislation is currently under review. For further information about this review, please visit http://www.justice.qld.gov.au/corporate/community-consultation/community-consultation-activities.
If you have a particular enquiry about body corporate legislation, please contact my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate.
Hi Commissioner,
Thank you for writing this article, it’s very timely. We have had the opposite in our scheme. Certain owners have issued inaccurate, libelous, defamatory and misleading information as a means to undermine our caretaker (not a letting agent). They simply live on-site and care for the property – part time remuneration plus market rent. This group of owners have submitted a motion for the 2nd year running on the AGM to mislead other owners stating that the caretakers need to be investigated for gross misconduct and bought to task etc. How can this be allowed to continue? Submitting motions for an AGM like this is not only irresponsible it is defamatory. If these types of motions are distributed to owners doesn’t it open the BC up to litigation? I would be happy to talk to you about this directly and get your opinion as I think this is a systemic issue.
Hello Taylor and thank you for your comment. I would recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate. While we cannot provide an opinion, we may be able to provide information to assist in resolving a particular situation.
Commissioner, I have logged a question for this particular issue and we are waiting for a reply. We need this reply in writing so that we have done our due diligence. Whilst I appreciate you must get many questions, 14 days may be too late by the time the agenda needs to be issued, thus putting the BC in jeopardy of litigation and once again (2nd year running) defaming the caretakers because of personal agendas. I respect the fact an owner has the right to submit a motion and this should not be reworded, but the right to refuse a motion that is unfounded, results in possible litigation or is based on personal agendas, needs to be addressed. Surely it cannot be a “free for all / open slather”.
Hi Keith,
I feel your comments need an explanation from the Caretakers/Letting Agents perspective.
As a Resident Letting Agent/Caretaker of a property we paid a lot on money to buy the business of letting units and caretaking the property. Given your suggestion we would loose everything. including the home we live in at the property that we purchased as part of the business if our Body Corporate was able to cancel our agreements to select an alternative.
If your Body Corporate has an issue with the Caretakers/Managers it needs to be worked through with them. They are not just contractors but business owners, and have a lot more invested in the property than any individual unit owner.
Its not as simple as you suggest.
HI Chris,
another great article, thanks for taking the time to instruct us directly in areas where we may not be up to date.
I was always under the impression that a Caretaker could not take any action that might ‘influence’ the decision of a committee. Surely lobbying by a Caretaker comes under such an action.
Am I mistaken in my view? Can Caretakers also lobby owners, or can only lot owners lobby?
Hello Andrew and thanks for your comment. The paragraphs above talk about your query in some detail and you might also be able to find other adjudicators’ orders on this topic at http://www.autlii.edu.au, using the search functions there. I might also recommend that if you contact the Information Service on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information.
I need to know how to the report the caretaker or cancel his contract . As I am not happy with manager and his step daughter running this building.
I am paying body corporate to pay the manger for his wage and I have been told he pays the receptionist which his step daughter.
1. I am asking these questions as a few months ago the manger took up on himself to verbally abuse my daughter, the issue was that we forgot to take a box down to recycle bin over night.
2. The next day the receptionist took upon her self to tell our delivery drives that she want sign for our deliveries or parcels she advise the delivery man to dump mine parcels outside the front receptionist door on the footpath and now she takes upon her to send my parcels back to sender. We have made so many complaints to Post Office but it is the receptionist who is cause these problems she has verbal abused me as I used the trolley to take some parcel upstairs. I have a formal complaint to Body Corporate and they passed it as she has the right not to sign and they brushed it off. I want to know what I can do to pay less body corporate fees as I don’t have the same service as the other residents. I bought this place 3 years ago and I have been living in hell. Can I report them to Tribunal or stop paying my body corporate fees .
Hello Mary and thank you for your comment. I would recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate. While we cannot provide legal advice or a complaints-handling service, we can provide information about your options.
Thank you so much you I had a call from your office and they made my case so clear that I do have a case against her. And found out that the body corporate look after her instead looking after me a resident.
And found about the Act 2-3 code of conduct behavior. This helps me make a case against her and manger.
Very interesting column.
We have issues with our BC in Qld & i am told different Strata laws apply in each state .Is this correct ?.
Hello David and thank you for your comment. Yes that is right. For information about Queensland body corporate legislation, contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate.
I think the commissioner’s is a bit lame and possibly the adjudicators are not doing their job. The resident manager, letting agent (who is often the resident manager) and the Body Corporate manger have considerable power to influence Body Corporate decisions. This was recognised in the existing legislation by having a specific code of conduct for them. Unfortunately, this code of conduct is not specially considered by the adjudicators and not mentioned by the commissioner. Further, the Trade Practices Act specially forbids conduct against individuals, organisation and corporations by those who hold power through influence, financial capability, size, numbers etc. Some unions have been taken to court over stand over tactics. The BCCM Act should out law lobbying from resident managers, letting agents, body corporate manager and any BC committee member. The code of conduct should be rigidly adhered, to particularly by adjudicators, in disputes with anybody mentioned in the Act with regard to the code of conduct.
I have found that even Body Corporate managers employed by lrge firms have not read the BCCM Act and do not understand some of the major issues. I also have found few committee members (including those with legal qualification) understand all the provisions in BCCM Act. I have read many adjudicators decisions and am surprised some of the legal failings.
Hello Peter and thank you for your comment. While I do not agree with all that you say, I respect your views and acknowledge that there is sometimes a lack of understanding – by all parties – about rights, responsibilities and obligations under body corporate legislation. I would recommend anyone needing information about body corporate legislation to contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate.
I note that this post is over 3 years old but i want to ask a question about the lobbying by the letting manager. Ours has done this and I agree that there should be no issues in supporting a particular person or committee. But he has also denigrated the other applicants by saying that by voting contrary to his vote (he attaches his voting paper) “to allow certain individuals on the committee whom would merely be in it for themselves; in our eyes would be detrimental to all”. This in an inflammatory and an unjust remark about those nominees integrity.
He also made mention of a motion where he said that it would cause “higher costs to the unit owners” this is a blatantly untrue statement.
He has the committee that he wants and doesn’t want this to change. They have negotiated a new contract with him which allows 5 years plus 5 years plus 5 years. Have taken duties out of the contract and we now pay an outside party for those for a much lesser amount of time
Hello Janice and thank you for your comment.
I would recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate.
While we cannot provide legal advice or a complaints-handling service, we can provide information about your options.