Mandatory Self Resolution

Life in a community titles scheme comes as a surprise to many new residents.

Perhaps the most striking difference is the proximity to others in your scheme.

Life in a body corporate means thinking about how your everyday behaviour might affect other occupants.

Behaviour that might seem perfectly normal to you – for example, watching a movie late at night with the volume up high, allowing your dog to roam around the communal garden leash-free, or smoking on your private balcony – might interfere with another resident’s right to the peaceful enjoyment of their lot or the common property.

Another common point of contention in community living tends to be decision-making. Naturally, not everyone is going to agree with the decisions made by their committee or the other lot owners at general meetings.

While there are those fortunate enough to be part of a harmonious body corporate, the reality is that a low-conflict body corporate requires a conscious effort on the part of all residents.

If there is a dispute – and particularly a ‘dispute’ of the type my Office has jurisdiction to resolve – it is important to know about self-resolution.

In line with the fundamental legislative objective of self-management essential to community living, self-resolution must be attempted before lodging a conciliation or adjudication application. Ignoring this critical step may result in your application being rejected from the outset.

What is self-resolution?

Self-resolution involves taking reasonable steps to resolve your issue internally without recourse to formal dispute resolution. Sometimes that will involve using body corporate processes such as putting a motion to a general meeting or committee.

What are the benefits of self-resolution?

Internal dispute resolution has two key benefits – efficiency and preserving relationships.

Submitting a formal application to my Office requires a lodgement fee, completion of an application and a waiting period before the issue is considered. However, self-resolution gives owners a chance to settle the issue simply and cheaply by communicating openly about the issue or putting forward a motion to your committee or a general meeting.

Escalating the problem to conciliation or adjudication prematurely may also harm already fragile relationships. In a community living situation, poor relationships can be a source of considerable and ongoing stress. Keeping the matter within the body corporate goes a long way to maintaining a degree of harmony in the scheme.

What is appropriate self-resolution if I don’t agree with the committee’s decision?

If the committee has the authority to make a decision on your issue, you may wish to submit a written request (referred to as a motion) for their consideration. Some common applications determined by the committee include keeping of animals, improvements to lots or the common property and maintenance.

If your motion is rejected, sending a letter or email seeking the reasons for their decision is an effective starting point (and evidence of self-resolution if you need to lodge a formal application down the track). Or, if the committee has already provided reasons and you disagree, respectfully provide the reasons why you disagree. When drafting a letter, bear in mind that the purpose is to encourage healthy dialogue towards change rather than point out potential errors.

If your issue remains unresolved you may consider lodging a conciliation application along with evidence of your efforts to resolve the issue with your committee.

Alternatively, if you think the other lot owners may have a different view to the committee, you may wish to submit the rejected motion to a general meeting.

Be mindful that if the motion does not pass at the general meeting, and you wish to pursue the issue, you may need to lodge an adjudication application disputing the reasonableness of the general meeting decision.  An adjudication application may take considerably longer to be finalised than conciliation, as a binding determination will need to be made by an adjudicator. If you would prefer to gauge the opinions of the other lot owners before taking this step, you could access the body corporate roll which contains detailed information about each lot in the scheme, including the name and address for service of lot owners.

What is appropriate self-resolution if I have an issue with another occupier?

Where the actions of another resident are interfering with your enjoyment of your lot or the common property, you may wish to tell them of the impact it is having on you.

Depending on your relationship with the person – you may feel comfortable expressing your concerns in person or over the phone. Remember to document your attempts to resolve the issue verbally, as you may need this for evidence later.

Alternatively, if you are uncomfortable with discussing your concerns in person or over the phone, you may prefer to send a polite informal letter to the person sharing your concerns.

If the issue persists, the next step may be to relay these concerns to your committee. Where the issue relates to a potential breach of the by-laws, you must follow the preliminary requirements for by-law enforcement before lodging an application. The first step is to provide a Form 1 to your committee, alerting them to the breach of the by-laws. The committee has 14 days from the date of you issuing the Form 1 to make a decision about whether to issue a contravention notice.

If the 14 days has passed and you have not heard from your committee or the committee has notified you they will not be pursuing the matter, you may consider lodging a conciliation application once you have exhausted attempts at self-resolution.

When would submitting a motion to a general meeting be a suitable form of self-resolution?

If you disagree with a motion passed by the other lot owners at a general meeting, you may choose to submit a motion for the next general meeting seeking to revoke the previous motion. The resolution type needed to revoke the motion must be the same as the resolution type that passed the motion initially.

Revoking a motion by submitting another motion may not be appropriate in all cases. For example, if at a general meeting the body corporate passes a motion to engage a particular company to paint the common property, another motion to revoke that previous motion may not be viable, as a binding written contract may already be in place. In these circumstances the body corporate may wish to seek independent legal advice.

If there is a by-law you believe is invalid, you could submit a motion to a general meeting seeking to amend or remove the by-law. There are a number of reasons a by-law may be invalid. Prohibiting animals (or a type of animal), discriminating between tenants and owners, imposing monetary liability, being inconsistent with legislation or being unreasonable are just some of the reasons an owner may seek to change a by-law.

Submitting a motion at a general meeting serves as evidence that you have attempted to resolve the issue internally before lodging an adjudication application.

How to promote self-resolution in our body corporate?

Open communication is vital for promoting a low-conflict body corporate. Of course, how you communicate your initial concerns sets the tone. Accusatory or hostile communication is only going to inflame the situation.

An effective method of maintaining control over disputes is for a body corporate to develop its own dispute resolution mechanisms. The committee or an owner may submit a motion to a general meeting to approve these processes. Establishing processes such as mediation or meetings – either formal or informal – may prove especially useful for managing grievances. In addition, smaller steps like making a particular committee member the first point of contact for residents or setting clear and reasonable timeframes for the committee to respond to requests or concerns may also defuse conflict.

Implementing internal dispute resolution processes means residents who feel aggrieved will have an internal forum for voicing their concerns. Without these mechanisms in place, residents may feel that lodging a formal application is the only avenue for their issue to be addressed, as there is no support within their own body corporate.

Importantly, proof of having participated in these processes within your body corporate may also be used as evidence of self-resolution should the issue remain unresolved.

What if self-resolution fails?

If endeavours to resolve the dispute internally are unsuccessful, the aggrieved person may consider lodging a formal conciliation or adjudication application with the Office of the Commissioner for Body Corporate and Community Management.

Conciliation involves an impartial conciliator equipped with knowledge of body corporate legislation assisting parties to navigate their issues – either face-to-face or by teleconference. While the ideal outcome of conciliation is a good faith agreement, an adjudication application results in a binding order. In the majority of circumstances, conciliation must be attempted first. Adjudication is generally appropriate in the first instance if you are disputing a general meeting decision.

As emphasised throughout this article, it is critical to remember that lodging a formal dispute resolution application for conciliation or adjudication is a last resort, not a starting point. With that in mind, it is important that I stress that self-resolution is mandatory and I cannot waive that requirement. If an application is lodged with my Office without appropriate evidence of self-resolution, it’s more than likely it will be rejected.

For further information please contact my Office on 1800 060 119 or www.qld.gov.au/bodycorporate.

This article was contributed by Michelle Scott, Commissioner for Body Corporate and Community Management