Posted on 23 Feb 2016
The current laws governing residential and commercial buildings in Queensland are overly onerous and out-of-step with lawmakers’ objectives.
The Queensland government called for submissions regarding administrative and procedural issues arising from The Body Corporate and Community Management Act 1997 (Qld).
In his submission, Slater and Gordon Litigation Lawyer David Greene said the current regulations are placing a large burden on body corporates across the state.
“A growing number of Queenslanders live and work in buildings governed by this regulatory framework, which is failing to strike a balance between individual rights and democratic decision making,” Mr Greene said.
“For example, some decisions currently require unanimous agreement, including potentially sustainable infrastructure proposals such as solar panels, water saving devices and wind generators.
“Securing the agreement of every lot owner is onerous and counter-productive, especially when you consider that most sustainable infrastructure increases the value and longevity of the building, as well as reducing cost of living for residents.”
However, Mr Greene also stressed the importance of ensuring every lot owner has a voice in the process.
“In my opinion, there is no better safeguard to protect the minority interests of lot owners than their ability to challenge the reasonableness of a decision by the body corporate” Mr Greene said.
“The current legislation allows for such challenges, but parties should not have to put up with the uncertainty and expense of utilising those procedures every time they fail to obtain unanimous support for a proposal.
“Instead, the introduction of a special resolution for certain decisions (those presently requiring unanimous support) would provide an adequate layer of support and protection by balancing individual rights with the need for community consensus.”
Suggestions for improving the effectiveness of Queensland’s body corporate laws:
- Remove the onerous requirement for unanimous support and replace with a requirement to obtain a special resolution for certain decisions.
- Improve the dispute resolution provisions (including lot boundary disputes) and building and maintenance issues by requiring the original owner to hand over the development approval, the certificate of classification, the fire safety plan, the building contract and any other contracts which the body corporate is a party to for the site at the first AGM.
- Protect schemes from external influence and proxy voting by maintaining secret ballots to appoint a body corporate manager.
- Prevent ‘gaming’ of the system in small schemes that struggle to find sufficient numbers of lot owners willing to serve on a committee by having the appointment of a body corporate manager as default, with an option to establish a committee as an alternative.
- Broaden the scope of the dispute resolution provisions, but ensure sufficient protections are built in to ensure concurrent litigation is not running in the Commissioner’s office and a Court. Concurrent litigation could become a legitimate strategy for a developer to undermine the ability of the body corporate to obtain a relatively inexpensive, easy and quick resolution to a dispute.