Question about Body Corporate Issue Regarding Accidental Use of Sinking Fund to Pay for Lot Owner's Responsibilities

Lrightguy on 13/01/2021 - 14:32
Last edited 13/01/2021 - 18:25

Update 1:

I just got an email back from a lawyer who has confirmed that if we are under the standard module that I am likely in the right and they will have to return the funds to the body corporate. He said it was a very simple process and that if there isn't an agreement from the committee/owners that it could go through adjudication and it would more than likely be decided that way as per the basis of the law.

So I live in QLD and I'm new to the body corporate (first time home owner here). We bought about a year and a half ago. Since we bought there was a real push by the members of the body corporate (there's 7 lots) to complete works on the foundations of 3 lots where there was subsidence on a timber retaining wall that held up a slab which then held up two levels of balconies. These are at the front of the properties along the shared internal road, so there was cause for concern as the subsidence was significant.

We had around 45K in the sinking fund. I managed to get new quotes for the job and we let it out to a contractor for just under 30K. Once the builder started to break slab it was clear that there were a number of latent conditions. Those came to around 20K for a final cost of around 50K. We recently had an EGM to raise 2K from each lot owner to pay for the extra. I had already paid in advance so that the builder could get paid ASAP as otherwise he would have had to wait 20 days for the EGM and with Xmas I wanted to do right by him.

Anyways, since that time I was refinancing my property and I came to the realization that we are actually under the standard module. I never realized that there were two modules, and was always under the understanding that body corporates were responsible for foundations and exteriors. That actually is only under another module. As it turns out that under the standard module is that each lot owner is responsible for their own foundations. The only thing that the body corporate looks after is common property and services that run under lots that are shared by lots.

Here is a link this:
https://www.qld.gov.au/law/housing-and-neighbours/body-corpo…

I've taken the pertinent information out as follows:

The body corporate is usually responsible for maintaining:

  • roads, gardens and lawns on common property
  • facilities on common property (like swimming pools and barbeques)
  • utility infrastructure (like equipment, pipes and wiring) that is on common property, or in a boundary structure, or services more than 1 lot.

The lot owner is generally responsible for:

  • the inside of the building, including all fixtures and fittings (except utility infrastructure that is common property)
  • the outside of the building within their lot boundary, including exterior walls, doors, windows and roof
  • the building foundations
  • all lawns, gardens and driveways inside the boundary of their lot
  • utility infrastructure (like equipment, pipes and wiring) that is inside the boundaries of the lot and only services that lot
  • any fixtures or fittings (including on common property) that were installed by the occupier of a lot for their benefit
  • exclusive use areas the owner has the benefit of, unless the exclusive use by-law says otherwise.

I have brought this up to the body corporate and have informed the 3 lots that we are in a pickle but that from what I can see the body corporate was not legally able to pay for these improvements and we need to charge the lots back to regain the money. Realistically I am happy to proceed with a payment plan of a few years. And also realistically I think some of the variation costs, which were due to services, should be assumed by the body corporate. The feedback I'm getting from the owners is that they believe that since we all agreed to pay for it from the body corporate that it's wrong to then charge the lot owners. I'm of the opinion that we agreed under false pretences and had no legal right under the laws governing body corporates to be able to utilize this money in this way and that it sets bad precedence and that, as members of the body corporate, that we have an obligation to act in the best interest of the body corporate and not ourselves.

What do people think? Do people agree with me that the money should be returned to the body corporate?

Please note that we did have multiple quotes and we were all under the agreement that the work had to be done as a safety issue and had an engineer look at it and make the recommendation that it should be done as quickly as possible. Please also note that under the legislation we have the right as a body corporate to do works, pay for it, and then backcharge the lot owner if they don't agree to do it themselves. Also, considering that multiple units needed work, it probably made sense to do them all at the same time financially and for the body corporate to manage it. So in the end, I do feel that the same process would have happened regardless. All of the owners also voted in favour of the works being done.

Any advice on what further steps I should take to recover this money for the body corporate if you do think the body corporate is entitled to it?

Any recommendations on any reasonable and fair body corporate lawyers in the Brisbane areas?

Thanks

Home & Garden

Comments

  • pharkurnell on 13/01/2021 - 14:49
    +13

    Just jotting down another reason (3rd for the day) never to live in a unit, townhouse or apartment….

    All I ever read about Body Corporate -are nightmares.

    • jimbobaus on 13/01/2021 - 14:56
      +1

      Body Corps can be fine if you read and understand your rights re common property / foundations etc

      more and more multi unit dwellings are being built now than ever before
      some local councils will only approve building permits for blocks provided 2 or more are built (rates $$$$)
      so body corps are going to be more common

      My advise as a landlord (who has prop in BC arrangements) and a owner (who lives in a BC home)

      Read the rules and regulations
      Attend the meetings
      read your statements and updates

      • rightguy on 13/01/2021 - 15:18

        Any advice about how the body corporate should handle this specific situation?

      • pharkurnell on 13/01/2021 - 15:46
        +1

        OR just buy a house on a block of land and live happily ever after. :) ;)

        • rightguy on 13/01/2021 - 15:56

          It's all risk based. For instance if you have an issue with subsidence at your freehold home you're entirely up for the cost if your insurance won't pay it. If you're in a body corporate and have a freestanding house on a lot like I do but the body corporate is responsible for the foundation and you have subsidence then you would only be responsible for a small portion of the cost.

          And there are some potential benefits to a body corporate. If it's an older body corporate and the land has really good potential for development you might be able to get more from your investment as it might have a lower bar for entry but a bigger ROI in the end.

          It's all about educating oneself and ensuring you know what you're getting into. I admit I didn't entirely which is why we're now in this pickle.

        • jimbobaus on 13/01/2021 - 17:21

          Good Luck unless you drive a Mercedes and work at Westpac

          • pharkurnell on 13/01/2021 - 19:17
            +1

            @jimbobaus: Or be smart about it and move out of city central… its nice out here.

    • rightguy on 13/01/2021 - 15:10

      Realistically had I been smarter about this and informed that there were different modules from the start we wouldn't have gotten into this pickle. We don't have much in regards to shared benefits. There's no pool or gym or anything, just a shared mailbox, a driveway and obviously some services below ground. So realistically, moving forward, there's not a lot of risk to myself to have to pay for anything related to the other lots. I've actually de-risked myself by finding this out, which is good because I have nearly 30% of all the lot contribution entitlements as I own 5 out of 17 so I'd be on the hook for more money than the other lot owners.

      The recommendation I can make is ensure that you understand lot contribution entitlements especially around water. Due to me owning 5/17 of the entitlements and that we don't have individual water meters I pay 5/17 of the shared bill while they all pay 2/17. So my bill is about 29% of 7 water bills where they all pay around 11% of 7 water bills. So my water bill is around $400-$600 a quarter

  • TheMindsetTraveller on 13/01/2021 - 14:55
    +2

    What do your strata by-laws actually state though?

    Whilst I appreciate this being a QLD government site, how would that work in reality? I mean if you live on the ground floor you are responsible for the foundation, whilst apartments directly above to level 50+ are not responsible?

    • rightguy on 13/01/2021 - 15:04

      It's essentially townhouses. So each lot is clearly defined and has its own foundation. The townhouses all share a dividing wall (6 townhouses organized into 3 groups of 2 lots with a shared dividing wall) and one lot (mine) is freestanding.

      Our strata laws state that we are only responsible for the very exterior surfaces of the buildings as a body corporate. Which I infer to mean painting of walls and not anything to do with foundations as slabs

  • crashloaded on 13/01/2021 - 15:01
    +2

    Is there a reason why building defects weren't covered by BC building insurance?

    • rightguy on 13/01/2021 - 15:06

      I don't believe home insurance covers wear and tear or faulty construction. It's clear that both were involved in the cause of the subsidence.

      • crashloaded on 13/01/2021 - 15:13

        Yes, guess it depends if the root cause was bad construction or in fact the soil which the foundations are on. From what I've read, if it's soil related, it should be covered on building insurance held by the BC which is a legal requirement I believe?

        • rightguy on 13/01/2021 - 15:14

          It was 100% bad construction. The slab was supposed to be slab on ground but the soil (it was a 90s build) was absolutely unsuitable as it was full of building materials, though luckily no asbestos. Basically it was never compacted to begin with. Obviously the builder is probably dead by now or out of business. They're lucky it lasted 30 years like it did.

          • TheBird on 13/01/2021 - 17:20

            @rightguy: If memory serves me right, the issue needs to be brought up with the builder within a certain time frame (2 or 5 years comes to mind), so it's well outside the scope of going back to the builder.

            • rightguy on 13/01/2021 - 18:28

              @TheBird: Yep there's usually a defects liability period of 1-2 years from practical completion during which all defects have to be noted. Not sure what the rules were in the 90s but the builder we had was well into his 60s and said it was even substandard works for a 90s build.

  • mskeggs on 13/01/2021 - 15:06

    Some strata agreements cover villas/townhouses with shared facilities. Some cover apartments where the entire building is shared.
    Your description sounds like you live in an apartment, but you then suggest the work was only done to some properties, as in the villa/townhouse example.

    What do your specific strata by laws say is the responsibility of the strata? I.e. not some government web site, but the laws of your property.

    • rightguy on 13/01/2021 - 15:12

      No - it's townhouses. 6 of them are grouped into 2 side-by-sides with a shared wall in between. I'm in a freestanding home at the top of a hill.

      As stated earlier the only responsibility for lots that is stated in the strata agreement is that the body corporate is responsible for the exterior surfaces of the structures. To me that relates to painting and nothing to do with structural aspects. Thankfully the homes are mostly brick (other than mine) so not a lot of painting required.

  • Meho2026 on 13/01/2021 - 15:31
    +1

    Are you on the executive committee?
    Just wondering because you might have a case to take the executive committee to the tribunal if they mislead the owners into thinking the body corporate as a whole was responsible for paying for the repairs.
    Does each owner have their own building insurance or does the body corp pay to insure all the lots?
    Your only way out of the water bill issue is to get individual meters installed

    • rightguy on 13/01/2021 - 15:47

      I am on the executive committee. The story I was told from the body corporate manager was that over 2 years ago, prior to me moving into the place, he informed members of the committee that this was not a body corporate manner and then one of the lot owners whose property was affected complained about him to his boss about it. His boss, the body corporate manager, told him to just let the committee do whatever they wanted. The body corporate manager has recommended that I seek some legal advise. But I'm more asking if people think it's fair for us to retroactively now charge the lot owners back or if the fact that the body corporate agreeing to pay for this should override the legislation?

      It's a shared insurance for all lots home insurance.

      Agreed about the water meters. The problem is that we would all have to pay for it and I'd have to get everyone to agree and then I think you basically have to recertify them every 8 years or so. Essentially it's probably going to be hard to push through and the extra costs will likely wipe away a fair chunk of my potential savings and not be something that the majority of lot owners would want to cough up.

      • Meho2026 on 13/01/2021 - 18:02
        +1

        OK, do you have evidence that the strata manager told the executive committee that, an email from them maybe or is it in the records?
        You may not need it but it would be useful.
        The executive committee members have an obligation to do what is in the best interests of the owners corporation. They haven't done this if they have acted in their own self interest and manipulated the facts so that their individual financial liabilities have been passed on to the owners corporation.

        I think your best bet is to ask the strata manager to make a claim against the building insurance.
        The strata managers often have relationships with the strata insurance reps and can make things happen that owners cant always do.
        You need to explain to the strata manager that if the insurance claim is denied then you will lodge a complaint against the the executive committee for failing to act in the best interests of the owners corporation and seek to have the individual lot owners pay for their own share of the repairs specific to their individual properties.
        Then you tell them that should that be unsuccessful you intend to take legal action against the strata management company (just say this you dont really have to do it).
        That will probably be enough to get the strata managers attention and cooperation.

        All that really needs to happen is a calculation of each owners individual contribution towards the entire bill. Then the owners can be billed directly by strata to recoup the money paid out of the sinking fund. It will then be like any other strata bill to an owner, they incur late fees and legal action taken at a certain point if unpaid.

        Alternatively, you leave it alone. It could be advantageous to you later if you have any issues with your specific property because a precedent has been set where the cost to repair an individual lot has been taken on by the owners corp.

        If you decide to do nothing, use it as a bargaining chip to get the individual water meters installed. One or more of the owners affected by the structural issues would have been on the executive committee and intentionally steered things the way they went. Just have a word in their ear, using your own communication style and tell them clearly, you know what they did, you know it was illegal and you wont cause any trouble for them if they make sure individual water meters are installed.

  • tsunamisurfer on 13/01/2021 - 17:00

    The money should be returned to the body corporate, but when it comes to a vote I suspect no one will vote that way.

    • rightguy on 13/01/2021 - 17:09

      All I need is to convince two more members to vote that way as I hold 5 out of 17 votes. All other lots owners hole 2 votes each.

      There are 2 other owners who have nothing to do with either of the lots where the work took place so I would just have to convince them that it's in their benefit - they'd be out $2000 up front in additional fees and 45K of body corporate sinking fund. We'll probably have to raise everyone's fees by at least $800 a year moving forward to get the sinking fund back up to where it needs to be over the next few years.

      Also one of the owners of a lot that was affected, realistically has a very small portion of the work attributed to their lot. Probably only up $2000 was the cost of the work done to their unit. However, they own another lot in the body corporate so they would be out $4000 for the special levy and then probably $1600 a year moving forward. So realistically it makes sense for them to just return the 2K and let it be that.

      Plus, I don't think we can vote either way. It's outside of what we can or can't do as a body corporate. The original vote and any other vote is illegitimate as we don't have the legal right under QLD law to use sinking funds to improve private lots unless monies are returned to us by those private lot owners. Therefore, from my reading of the legislations and regulations, we can't vote on it one way or another as it's outside our jurisdiction as a body corporate.

      What we can do is agree to a payment plan. I'd be happy, with the larger amounts due, to have it paid back at zero interest in instalments over 2-3 years, which I feel is more than fair.

  • TheBird on 13/01/2021 - 17:15
    +2

    INAL but I've been involved with multiple body corporates for more than half my life.

    Notice in the rules you quoted, there's words like usually and generally? It's not as rigid as you'd expect and unless specified as must be the responsibility of, the choice falls to the whims of the owners. Welcome to the party pal.

    Since we bought there was a real push by the members of the body corporate (there's 7 lots) to complete works on the foundations of 3 lots where there was subsidence on a timber retaining wall that held up a slab which then held up two levels of balconies.

    Since you own 5 lots, I assume you're on the committee? If not, get on it. It's a good idea since you're responsible for nearly a third of the costs from their decisions.

    There's real value in having a good strata manager who has a reasonable grasp of the body corporate rules/laws.

    It's good practice to ask your manager whether this falls in the responsibility of the body corporate. You'd be surprised how odd the rules can be. So often, they defy belief.

    We recently had an EGM to raise 2K from each lot owner to pay for the extra.

    I assume you mean you have an EGM to vote upon the issue and then had an additional EGM to vote to raise the extra funds through a special levy?

    I have brought this up to the body corporate and have informed the 3 lots that we are in a pickle but that from what I can see the body corporate was not legally able to pay for these improvements and we need to charge the lots back to regain the money. Realistically I am happy to proceed with a payment plan of a few years.

    The pickle belongs to all owners. While I don't know all the details, if your argument was correct (it isn't) your body corporate potentially authorised an expense which wasn't yours to authorise. That on its own would make the expense your own issue.

    Imagine this happened. We (Committee of non-body corporate people who you were apart of) decided by majority that you should get some sort of widget for your thingy and we decided to all pitch in and purchase it as there's no way you can afford it. Later on, we decide by committee that instead of all of us splitting the cost, you should reimburse everyone. You'd tell them to F themselves right? Even if they offered to put you on a payment plan. I know they would learn some colorful words from me if I was placed in that position to start with.

    I'm of the opinion that we agreed under false pretences and had no legal right under the laws governing body corporates to be able to utilize this money in this way and that it sets bad precedence and that, as members of the body corporate, that we have an obligation to act in the best interest of the body corporate and not ourselves.

    One thing that you probably aren't aware. Body corporates can vote to and take partial or full responsilility for something that they're not responsible for. We do it in ours from time to time usually where individual solutions become problematic and can have negative long term effects on the complex.

    The issue you have is, as a collective, you have agreed upon a particular set of actions. You're now proposing changing those actions retroactively?

    What do people think? Do people agree with me that the money should be returned to the body corporate?

    No chance in hell. You can try, but it's a good way to get your entire complex sued. Admit the body corporate made a bad vote, cut your losses, learn from it and move on with your life. It sounds like you pushed this through before the second EGM. Legally speaking, there's a chance you may find yourself bearing the brunt of the financial burden. I wouldn't push this any further. The risk on you could be more than you'd expect.

    If you're determined to persist with this, engage a lawyer you trust and seek their professional opinion on the matter. Since you own a reasonable amount of real estate, mitigation of your legal responsibility on this matter should be something you need to seriously consider.

    The feedback I'm getting from the owners is that they believe that since we all agreed to pay for it from the body corporate that it's wrong to then charge the lot owners.

    They're right. You can have another EGM to vote upon it (or least it to the AGM), but I think you'll find that even if you did win the vote, the result may not be enforceable. You'd need to go to court and I don't see how it wouldn't get thrown out.

    Out of interest, how many votes were for/against this motion?

    I'm of the opinion that we agreed under false pretences and had no legal right under the laws governing body corporates to be able to utilize this money in this way and that it sets bad precedence and that, as members of the body corporate, that we have an obligation to act in the best interest of the body corporate and not ourselves.

    You may have that opinion that they have no legal right, but you'd be wrong. If it's legal (which it is unless you have proof of fraud) and it's the will of majority the owners who voted, even if they voted based on incorrect information. This is part of the price of owning in a body corporate.

    • rightguy on 13/01/2021 - 17:36

      I own 5 lot entitlements out of 17 entitlements (there's 7 lots, I own 1, but the other 6 lots only have 2 lot entitlements each)

      We had an EGM last week where the special levy of 2K per lot was approved. I abstained as I stated we didn't have the legal authority to vote on it and that any vote for or against was null and void legally speaking any how. There were two votes in favour as there were only 2 other people present at the meeting. I'm not sure if anyone put their votes in by mail/etc.

      As per your issue with being please see the below rules for QLD which relates to the legal situation:

      The body corporate cannot pay for, or levy owners for, maintenance that a lot owner is responsible for (such as painting the building), unless it:
      a) has an agreement with an owner; and
      b) charges that owner for the cost of the work.

      A body corporate can carry out maintenance and recover the ‘reasonable cost’ from the lot owner if the owner has not done maintenance required under:

      • body corporate legislation
      • a notice given under other legislation
      • the community management statement, including the by-laws
      • an adjudicator’s order
      • the order of a court or tribunal.

      That's sorta where I'm coming from: the law states clearly that a body corporate cannot pay for or levy owners for maintenance that a lot owner is responsible for. Yes it might be a legal dispute. But we've essentially done the wrong thing. And I think it's pretty clear that we are in the right legally speaking.

      • TheBird on 13/01/2021 - 17:42

        ok, I see where you're coming from.

        You're in a pickle.

        Yes it might be a legal dispute. But we've essentially done the wrong thing. And I think it's pretty clear that we are in the right legally speaking.

        I've read this between the lines. Did you pay some money out of your own pocket to the builder? $5k or $20k?

        • rightguy on 13/01/2021 - 17:48

          No I didn't make any direct payments to the builder. Prior to the levy being in place, assuming that it would be passed, I paid $2000 into the body corporate so we had funds to pay the builder at the time. Otherwise he would have had to wait at least 20 days for the EGM and the outcome and then the payment of the levy - so maybe 2 months - before he was paid in full. A few weeks after that I realized that I probably wasn't on hook for any payment at all.

          • TheBird on 13/01/2021 - 17:56

            @rightguy: No worries.

            I read between the lines that you bridged the payments for the builder, but I didn't realise how you did it.

            If you had, it could have made you more culpable.

            The problem I see you needing to overcome is the body corporate had been given notification (even if it were years ago) that it wasn't their responsibility and the majority vote still passed the motion and paid the contractor.

            It's not a stretch to see you paying the your levy early may be taken as your acceptance of the special levy.

            • rightguy on 13/01/2021 - 18:08

              @TheBird: It appears that it was just one member of the body corporate who was provided with that. They were one of the main people who would have been up for the payment. They then went back and argued with the management company who basically washed their hands of it. None of this was communicated to me until after the issue was decided. It's clear that there was a reasonable circumstances for them to actually get legal advise at that point but they didn't. They also withheld that information from the rest of the body corporate. And they benefitted from doing so. It may be that that could be considered fraud in a court of law. I'm hoping over probably 10-15K worth of costs for them to pay back over a few years (they've already agreed to pay 2K into the special levy so realistically we're talking 8-13K extra probably worst case for them) that it's not worth them challenging it under that basis as I do believe that they should have, at that stage, made it clear that the body corporate manager raised the issue and that legal advise was required to move forward.

              As for the payment. Realistically the special levy wasn't even in discussion at that stage. I was in talks with the body corporate manager and he mentioned that if I put in 2K he'd be able to pay the contractor in full. So it could also be seen as just an early payment of my next contribution (I pay $1210 per quarter). But I do get what you're saying and appreciate your comments

              • TheBird on 13/01/2021 - 18:24

                @rightguy:

                None of this was communicated to me until after the issue was decided.

                I'd consider it part of your job as part as a member of the committee to ask. There's nothing you can do about that now but take it as a lesson to learn and not fall for it in the future.

                It appears that it was just one member of the body corporate who was provided with that.

                I see that kind of thing happening all the time. Usually not on big issues costing this much, but it certainly does come up often. An owner puts in for a repair, the strata management replies that it's not an issue for the BC, the owner than puts forth a motion for either the committee (or occasionally at the AGM) to get it done anyway.

                Ever since I came on the committee, I ask a lot of questions to try to nip things in the bud as early as possible. When we spend money, I want it to count and I fight tooth and nail for wasteful spending (I've had experiences in previous body corporates I learned from and would rather not have it happen again). Most owners aren't like that. Being not only active, but proactive and having yourself a great strata management company helps.

                They also withheld that information from the rest of the body corporate. And they benefitted from doing so. It may be that that could be considered fraud in a court of law.

                It's an argument. I'd say it's a weak one, but you might be right. I doubt they have a legal requirement to disclose that information, but if your assumption is correct, your argument gets stronger.

                If you wish, consider action against your strata management company. They may hold some of the fault.

          • TheBird on 13/01/2021 - 18:08

            @rightguy: Another issue:

            I assume there were notices sent to these owners that they needed to get the work done and if it wasn't completed, it would be completed for them?

            In other words, was due process followed? Which is unlikely, but there may be a paper trail from before you time. If not, you may find, they don't owe.

            At best, it's a mess and it shouldn't have been let to get this far.

            • rightguy on 13/01/2021 - 18:24

              @TheBird: There's about 2 years in which everyone was aware of this issue and just waiting to approve the costs.

              From my point of view the reality is that the work needed to get done and paid for. It was never going to be done by them because none of them have a building license and it was always over 3K in work and required a QBCC license.

              Ultimately the argument could be that they ought to be assessed fair costs for the work done to their property. That might be less than the actual cost and that's fair if that's the case. But I don't think they can say that they aren't up for some costs as they've received a benefit to their property at the cost of someone else. It would fall under the law of unjust enrichment as they approved the work and knew the work needed to get done. So it's not like we put up a new balcony on their property without their permission. The reality is that they didn't object to the work, nor did they object to the fact that it needed to get done.

              As for the cost. We did have 2-3 quotes for the work and a design of the work by a structural engineer. We did go with the cheapest builder (we had quotes from 30-50K).

              On a side note I did just hear back from a lawyer who said I'm utterly in the right here and they will need to pay it back.

              • TheBird on 13/01/2021 - 18:32

                @rightguy:

                On a side note I did just hear back from a lawyer who said I'm utterly in the right here and they will need to pay it back.

                Be careful with some lawyers. Some just want to pad their legal bills without a care for the best interests of the client.

                The reality is that they didn't object to the work, nor did they object to the fact that it needed to get done.

                Technically, they didn't object to the work in COMBINATION with the terms. You don't know if they would object to the work if they were aware they'd be up for the entire bill.

                It sounds like you're going to try to push it through.

                I'd be interested what you're going to do if you don't have the support of the majority of the owners.

              • TheBird on 13/01/2021 - 18:35
                +1

                @rightguy: One last note to give.

                Assuming you live on site, remember, you need to live with these people.

                Some fights are worth picking, others aren't.

                • rightguy on 14/01/2021 - 13:29

                  @TheBird: I actually live on a hill 250 metres away from everyone else and never see any of them as I have a separate entryway and my neighbours are not involved in the body corporate. So I'm not too bothered.

  • OzHunterNSW on 14/01/2021 - 10:53

    So you read the glossy pamphlet with sunny images of smily people enjoying life, skipping into their autumn years without a care in the world.

    You begin to see yourself in this very same picture, perpetually smiling dancing in the sunshine, but how can I do this….

    By simply signing upon the dotted line.

    You my friend have just fallen for the typical car salesman text book on scamming techniques.

    • rightguy on 14/01/2021 - 13:31

      Actually just got my house valued yesterday for refinancing yesterday and it's value was determined to be 17% more than what I bought it for 18 months ago so I'm not too bothered. I've only spent 3K since then on a solar system. So I'm still really thrilled by the purchase.

  • Bjingo on 14/01/2021 - 14:16

    The responsibility of maintenance depends on where the damage is situated. Personally I would check where the retaining wall is situated on the survey plan to delegate responsibility. In addition I would determine what caused the subsidence in the first place, wear and tear generally would not cause three properties to sink concurrently. if it did sink due to poor workmanship and it was built within the past 6 years you can bring it up with the original builder.

    If it is not the responsibility of body corporate you cannot force the owners to use the builder that was chosen, assuming you could get 4/7 lot owners to agree with you, you would have to firstly let them know it is their responsibility and that they are expected to repair it. If they do not and it is deemed to be an immediate safety issue you can then claim they failed their statutory duty to maintain the lot and proceed to do the work required and recover a reasonable cost as a debt.

    I am going to assume you passed a resolution at the EGM to do the construction, to overturn the decision wouldn't you need 4/7 owners to side with you?
    the Body corporate and Community Management act 1997 says one vote can be exercised for each lot. Not one per entitlement.

    To claim the vote was made under false pretense you would have to provide evidence that an individual intentionally misled you with false information in order to financially benefit.

    Morally speaking since everyone came to an agreement originally about what to do regarding the issue it should be followed, it is due to the negligence of the body corporation for not doing their due diligence regarding the allocation of responsibility that this has happened to begin with.

    • rightguy on 14/01/2021 - 15:18

      It's a 90s build and was clearly poor workmanship. But far too late to do anything about it but wear the cost.

      Just so you know as well you're more than welcome to vote on lot entitlements if you like, just someone has to request it, otherwise it's a 1 vote per lot situation. But if you request that it be tallied as per entitlements it is mandatory for it to be tallied that way. So with me having 5/17 of the votes and all other parties having 2/17 each I would just need two other lot owners to join with me for 9/17 majority.

      You have to remember that there's the legal concept of unjust enrichment. If I build something on your property, even if you don't ask me to build it, but you watch me build it and it adds value to your property then you have an obligation to pay me a fair cost for that work. It's too late at that point to say that you didn't agree to the work being done when you've watched me do it.

      As it turns out the body corporate had no legal authority to make the agreement it did. It falls outside the bounds of the limits of what the body corporate can do legally within the confines of the law. As such it looks like the owners will have to return the money to the body corporate. I've now consulted with 3 lawyers locally and they said it's a cut and dry case.

      • Bjingo on 14/01/2021 - 15:52
        +1

        I believe you have missed the timeframe to request a poll vote as the motion was passed in a previous meeting.

        (3) The request for a poll—

        (a) may be made whether or not the meeting has already voted on the motion other than by poll; and
        (b) may be withdrawn by the person who made it at any time before the poll is completed.

        **(4) However, the request under subsection (3) (a) must be made no later than—

        (a) if the motion ("motion A" ) is not the last motion to be considered at the meeting—before the meeting decides the next motion to be considered after motion A;
        or
        (b) if motion A is the last motion to be considered at the meeting—before the meeting ends.**

        http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/cons…

        But it seems like you have it sorted anyway which is good.

      • Bjingo on 14/01/2021 - 15:58

        Also for my own curiosity and the fact I had not heard of unjust enrichment;

        If someone were to find out that they were to pay for the cost of repairs and they immediately asked for them to cease work would they be liable?

        • rightguy on 15/01/2021 - 09:42
          +1

          They would likely be liable for fair costs up to that point of ceasing work. With a body corporate it probably wouldn't make sense to push to stop works though. From my point of view the work needs to get done, they've agreed that the work needs to get done, and they have agreed to a sum that the work should cost and have had a fair chance to go out and get quotes on behalf of the body corporate. It would probably cost them more in the long run to remobilize and do the works out of sequence with the other lots. But supposing they did, if they didn't engage the contractor or another contractor quickly the body corporate would notify them that the work needed to get done and they'd be up for the bill in the end either way.

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