by Chris Irons
28th March, 2017
Myths about owners and tenants
To be more specific, the Body Corporate and Community Management Act 1997 (the Act) does not actually refer to tenants, it refers to ‘occupiers’.
For the purposes of this article though, I’ll refer to tenants and think of them as people holding a lease for a lot in a scheme. I will do so because I want to address several myths about the interaction between tenants and the body corporate.
My office hears and sees these ‘myths’ during both queries and disputes.
Myth: an owner has more rights than a tenant, given they pay levies and own the lot. So, it’s ok for the body corporate to not allow a tenant to do some things (e.g. access the pool) and restrict this to “owners only”.
Reality: the Act makes clear that any by-law that discriminates between different types of occupiers is an invalid by-law. So, if a body corporate is, for example, placing a sign on the swimming pool or other common facilities saying they are “not for tenants” and basing this on their by-laws, it would follow that by-law is an invalid by-law. Remember that common property and facilities are for the benefit of all – hence the term “common”. A tenant takes over the owner’s right to the use or occupation of common property. An occupier who is an owner has no greater rights of occupation than a tenant.
Myth: as a body corporate manager (or caretaker), I am appointed by and in contract with the body corporate. So, that means I cannot deal with tenants, respond to their queries or provide them the type of service I might provide an owner.
Reality: a body corporate manager or caretaker acts on behalf of the body corporate and takes their instruction. It therefore follows that in some instances, these contractors would have a need to interact with and respond to tenants. For example, a tenant may satisfy the definition of an “interested person” under the Act and thus be entitled to seek – upon payment of a prescribed fee – body corporate records, which may be in the possession of a body corporate manager.
Similarly, a caretaker provides that caretaking service for the entire scheme. So, if a tenant reports damage to common property, for example, the caretaker should be responding to that report in the same way they might respond to an owner.
Myth: if there’s a maintenance issue at the scheme and it’s having an impact on a tenant, then it’s up to their real estate agent or landlord to deal with it, not the body corporate. The tenant is not allowed to talk to the body corporate manager or the committee.
Reality: maintenance responsibilities are often the subject of dispute and it is not always ‘cut and dry’ whether it is the responsibility of the body corporate or the lot owner to attend to repairs and maintenance. If it is a body corporate responsibility, then under the Act the body corporate is required to attend to it, regardless of whether it is having an impact on a tenant or an owner. It is quite appropriate for a tenant in such a situation to approach the body corporate (via its body corporate manager, for example) about the matter and this is particularly relevant in the event of an emergency repair.
There is no legislative provision that states a tenant is not permitted to communicate with the body corporate or its agents.
Myth: there’s a by-law breach occurring at the scheme and it’s having an impact on a tenant. Because it’s only affecting a tenant, the body corporate isn’t required to enforce the by-law.
Reality: the body corporate is required under the Act to enforce its by-laws. By-laws apply equally to all occupiers, whether they are tenants or owners. A tenant is therefore able to approach the body corporate and request the body corporate enforce its by-laws. If the body corporate decides not to take action about the alleged breach, the tenant may then be able to apply to my office to pursue a by-law dispute.
The overarching message out of these myths and their realities is that a tenant has, under the Act, a number of rights and responsibilities upon which the body corporate is legislatively required to act. The fact that a tenant doesn’t own a lot does not change these rights and responsibilities.
Commissioner at Office of the Commissioner for Body Corporate and Community Management