Aside from the recovery of levies, the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) gives bodies corporate a number of specific protections to allow costs to be recovered from owners who have:
- Failed to comply with their obligations where the body corporate has been required to step in (for example, when the body corporate is required to repair plumbing in someone’s lot); or
- Caused damage to other parts of the scheme (for example, a tree in a backyard where the roots are damaging the common property).
These mechanisms are not well known or often utilised because of the better known principles that:
- By-laws cannot impose a monetary liability; and
- The Commissioner’s Office is generally a no-cost jurisdiction.
Failing to comply with obligations
If an owner or occupier fails to comply with one of their obligations in the BCCMA, regulation module, by-laws or an adjudicator’s order, the regulation module provides that:
The body corporate may carry out the work, and may recover the reasonable cost of carrying out work from the owner of the lot as a debt.
There is no requirement to first obtain the permission of an adjudicator’s order to exercise this power, or have any enabling by-law. However, the body corporate should:
- Firstly, write to the owner or occupier and require the work to be carried out within a reasonable amount of time, giving them the opportunity to arrange the work at their cost;
- Authorise any decision to take action or incur spending by passing a resolution;
- Document the work carried out, and keep evidence of the need for the work to be carried out; and
- Provide any necessary access notices as part of carrying out the work.
Despite the Commissioner’s Office generally being a no-cost jurisdiction, the BCCMA specifically authorises an adjudicator to make orders for:
- payment of up to $10,000 towards damage that has been caused in repairing property; or
- requiring the person to carry out particular repairs of up to $75,000.
In seeking such an order, there needs to be sufficient evidence showing the cause of the damage otherwise an adjudicator would be unable to assist.
We can assist
In exercising any of these rights, the body corporate must always act reasonably.
If a body corporate is unsure as to whether it can (or should) exercise one of these rights, please let us know.