01st September, 2019
延長管理權的年限 - 續約權、合約變更與補回年限
Options, Variations and Top Ups
原文作者：Trish Riley 採訪 Mike O'Farrell
翻譯： Paul P Shih 施伯欣老師
In an industry that is evolving as quickly as management rights is, there are always areas that appear a little ‘grey’. To this end, Resort News will be posing questions about topical and current issues to industry specialists. In this issue we Trish Riley speaks with Mike O’Farrell, director of MLR Services about the complexities surrounding options, variations and top ups.
在一個像管理權一樣迅速發展的行業中，總會出現一些“灰色”的區域。為此，Resort News 將向業界專家提出當前熱議的問題，來釐清讀者疑問。在本期中，我們的主編Trish Riley與MLR Services的董事Mike O'Farrell先生討論了有關於續約權、合約變更與補回年限的複雜問題。
Q: What is the difference between an ‘Option’ and a ‘Top Up’ or ‘Variation’?
A: ‘Options’ are sometimes called “extensions”. The term of the management rights Agreement that has been granted can be broken down into an initial term and any number of ‘Options’.
The ‘Option’ terms can and will vary from Agreement to Agreement. The important thing to remember however, is for managers to know what they have to do to exercise the ‘Option’, and when. If a manager fails to exercise their ‘Option’, their agreement will come to an end. There is no recourse in this situation.
As the onus on seeking to take up an ‘Option’ lies with the manager, it is absolutely vital that the ‘Option due’ dates are made as clear and concise diary and calendar notes as to when to start and complete the process; and if there is any doubt about the dates, please check with your legal representative.
Remember, the Agreements are what were purchased and that asset should be protected.
‘Top Ups’ and ‘Variations’ is the process by which the management rights Agreements are extended. In other words, a variation to an agreement by creating a new term.
Q: What sort of meeting is required by the body corporate for an ‘Option’ and/or ‘Variation’ to be granted?
A: Seeking to exercise an ‘Option’ would normally be carried out by a manager’s legal firm, by writing to the body corporate with the appropriate request. Generally, Agreements will provide specific detail on this process.
‘Variation’ or ‘Top Up’ to an Agreement is done at an extraordinary general meeting (EGM) or annual general meeting (AGM) and is approved by ordinary resolution; the simple counting of ‘for’ and ‘against votes with regard to the motion.
In most cases, the appointed legal firm would prepare the motion and Deed of Variation and the body corporate would request its legal firm to review the proposed motion and deed.
Unless otherwise negotiated, a manager should expect to pay the costs of both legal firms’ fees.
Q: When should a manager start asking for a ‘Variation’ or ‘Top Up’?
A: A ‘Top Up’ is not an automatic right, it must be earned. There is no obligation at all on a body corporate or an owner to vote in favour of a ‘Top Up’, and there is no recourse if the request for the ‘Top Up’ is denied. This is not a matter that can be referred to the Body Corporate Commissioners Office or QCAT.
Managers should clearly communicate their intention to owners, starting with the committee, well ahead of the AGM. In most cases, I would recommend at least 12 months prior.
Q: What are the basic steps in convincing and then communicating to owners your request for a ‘Top Up’?
• Do the job and do it well.
• Managers should communicate their intention to seek a ‘Top Up’ to the committee while seeking feedback on current duties and whether they need to be reviewed.
• Managers should communicate with the committee about the current salary, demonstrate how it is allocated and earned.
• Managers should communicate with owners regularly through newsletters about the good things they do, as well as passing on any good feedback or references from guests, other owners, the committee, tenants and so on.
• Managers should be prepared to negotiate; a ‘Top Up’ that may require a new set of duties with a similar salary and added review periods will still be beneficial.
• Managers should be prepared to solicit owner support once the AGM papers are distributed.
Q: Agreements are regulated by the BCCM Modules, so when should one seek a ‘Top Up’?
A: Standard Module – 10-year Agreements: I would encourage managers to seek a ‘Top Up’ every two years, and definitely no later than with seven years to run.
Accommodation Module – 25-year Agreements: I would encourage managers to seek a ‘Top Up’ every five years, and definitely no later than with 19 years to run.
答：標準模組 - 10年協議：我鼓勵管理人員每兩年尋求一次“補回年限”，絕對不會讓剩餘年限低於七年。
住宿模組 - 25年協議：我鼓勵管理人員每五年尋求一次“充值”，絕對不會不會讓剩餘年限低於19年。
資料來源：Mahoneys Lawyers and Hynes Legal