{"id":1437,"date":"2019-10-28T13:54:31","date_gmt":"2019-10-28T03:54:31","guid":{"rendered":"https:\/\/theonsitemanager.com.au\/news\/?p=1437"},"modified":"2019-10-28T13:54:32","modified_gmt":"2019-10-28T03:54:32","slug":"management-rights-lost","status":"publish","type":"post","link":"https:\/\/theonsitemanager.com.au\/news\/management-rights-lost\/","title":{"rendered":"Management Rights Lost"},"content":{"rendered":"\n

A Townsville Management Rights operator has lost their management rights because of failure to comply with the BCCM Act. \u00a0On 10 July 2019 Adjudicator Barry declared that body corporate committee resolutions from 2015 consenting to the transfer of management rights were void\u2026<\/strong><\/p>\n\n\n\n

Accordingly, the current management rights operator\ndid not own the management rights, despite having performed the caretaking\nduties, and having been paid for doing so, for almost 4 years.<\/p>\n\n\n\n

The Adjudicator\u2019s decision was the latest\nin a line of decisions dealing with the management rights for Allure Apartments\nCTS 46322 in Townsville.  On 26 September\n2018 another Adjudicator had declared the letting agreement for the scheme\nvoid, from the date it had been granted 4 years earlier on 3 September 2014.\nThat was for a breach of s116 Body Corporate and Community Management Act 1997\n<\/em>(Act<\/strong>).<\/p>\n\n\n\n

At committee meetings held on 25 May 2015\nand 10 September 2015 the body corporate committee had authorised the transfer\nof the caretaking agreement and letting agreement from Allure Hotel and\nApartments Pty Ltd (AHA<\/strong>) to Allure Townsville Accommodation Pty Ltd (ATA<\/strong>).<\/p>\n\n\n\n

In the 2018\nAdjudicator\u2019s decision, it was found that the letting agreement had not been\ntransferred from AHA to ATA because at the time of transfer the letting\nagreement was void.  The letting\nagreement was void because the letting business was being operated from a\nmanager\u2019s unit and a reception area which were not owned or leased by the\nletting agent.  Crucially, neither was\nthere a deed in place under s116 of the Act between the owner of the reception\nand manager\u2019s unit and the Body Corporate.<\/p>\n\n\n\n

At least one owner in the scheme asked the\nquestion, after the September 2018 Adjudication, \u201cif the letting agreement\nwasn\u2019t transferred because it was void, did that mean the caretaking agreement\nwas also not transferred<\/em>?\u201d<\/p>\n\n\n\n

Most letting agreements and caretaking\nagreements contain provisions that if one is transferred without the other,\nthen here is a breach of both.  An\nalleged breach of a management rights agreement is not however within the\njurisdiction of an Adjudicator appointed by the Commissioner for Body Corporate\nand Community Management under Chapter 6 of the Act.<\/p>\n\n\n\n

Cleverly the applicant had not strayed into territory where the dispute would have to be dealt with by QCAT, instead of through the Commissioner\u2019s office.\u00a0 The applicant framed the dispute in another way. Particularly, rather than arguing whether there had been a breach, the applicant simply asked the Adjudicator, \u2018if the letting agreement\nhas not been transferred, has the caretaking agreement been transferred?<\/em>\u2019<\/p>\n\n\n\n

While the Adjudicator found that was the\ncase, the Adjudicator\u2019s reasons had nothing to do with s116 of the Act, or the\n(void) letting agreement. <\/p>\n\n\n\n

Instead, the Adjudicator took into account a number of earlier adjudicator\u2019s decisions (from 2017) where the eligibility of the voting committee members who constituted the committee in 2015 was discussed.\u00a0 <\/p>\n\n\n\n

The\ndecision is important for management rights operators for a couple of reasons:<\/p>\n\n\n\n