WHAT WE DON’T DO:
is act for caretakers or developers in body corporate law issues, as we see potential for awkward conflicts of interest – we usually act exclusively for committees of bodies corporate – and that’s it.
WHAT WE DO ‘DO’:
MHL proudly acts for bodies corporate in all matters that concern them and does so almost exclusively. If it’s body corporate- then we are your firm. We know the issues, we understand the difficulties and we have the solutions. We also have positive and dynamic working relationships with many body corporate management firms and are well respected within the industry.
If you’d like some examples of the sorts of matters we deal with daily, read on…
Bodies corporate consider amalgamating in 2 main scenarios:
- where a developer establishes separate bodies corporate to suit a development and sales timetable, despite the inevitable duplication of costs; and
- where there are adjacent schemes of a similar nature which are looking to reduce costs.
MHL has acted for bodies corporate in both situations, and can advise and guide you through the process to achieve the right outcomes.
Despite the best of intentions, it is sometimes necessary for a body corporate, or an owner, to take action in the Commissioner’s office to protect their interests.
We can prepare and conduct any application you may need to make. Some recent successful examples (of many) include:
- opposing owners’ claims for significant damages allegedly arising out of termite damage;
- contesting the validity of exclusive use grants to a caretaker;
- opposing exclusive use grants to a penthouse owner;
- opposing to a plan to force owners to install air conditioners in their units;
- opposing a developer’s use of its voting power to prevent interest being imposed on overdue levies (most of which were the developer’s levies);
- opposing a developer’s use of its voting power to alter administrative and sinking fund contributions without regard to the needs of the Body Corporate;
- opposing one owner’s efforts to ban hard flooring throughout the building;
- seeking orders that a body corporate rectify leaks and repair damage to common property and the owner’s property (outcome pending)
MHL frequently advises and assists bodies corporate in the assignment of caretaking and letting rights.
Given that the reasonable costs of an assignment are payable by the outgoing caretaker, it is prudent for a committee to seek legal advice on the legal documentation proposed, to ensure that their interests are protected and to obtain the best possible assignment outcome.
We are pleased to say that usually, assignments do proceed well and without significant issues. But when problems arise, we are here to help resolve them or to assist in rejecting the appointment of an undesirable caretaker. Some recent examples include:
- where a caretaker shareholder had a recent conviction for domestic violence;
- the proposed caretaker’s purchase of a unit would contravene foreign investment laws;
- the proposed caretaker planned to conduct another business from the premises; and
- the proposed caretaker refused to agree to standard assignment clause.
Even where an assignment is to proceed, we often negotiate inclusion of new or improved clauses to better protect the committee’s interests and strengthen caretaker obligations. For example, committees may require an incoming caretaker to undergo ongoing training.
MHL has extensive experience representing bodies corporate which have been left with incomplete works or unacceptable works (poorly performed or wrong materials).
We can assist committees with:
- actions in the Queensland Building and Construction Commission (previously the Building Services Authority);
- negotiations with builders/developers; and
- owner communications as to the legal position.
MHL is regularly retained to review by-laws to deal with:
- new decisions (cases) from the Commissioner’s office;
- new legislation; and
- new problems and opportunities.
We can draft specific new by-laws as requested or provide an appraisal of the existing by-laws.
It is also an unfortunate reality that sometimes occupiers or owners do not comply with by-laws and in these instances we are very experienced in assisting the committee with by-law enforcement.
If a caretaker is not performing its duties and the committee’s attempts to lift the caretaker’s performance have been unsuccessful, then a committee may be left with no choice but to issue breach notices as a first step in the termination process.
Breach notices must comply with strict legal requirements. Many actions against caretakers have failed because of invalid breach notices.
MHL has drafted many breach notices and can advise and guide the committee in this tricky area.
It is increasingly common for a body corporate to refuse to accept a caretaker’s failure to perform various duties, and worse, to question why it is paying a third party to perform tasks that are included in the caretaking contract.
We have extensive experience advising committees about a caretaker’s contractual obligations and the committee’s options to improve or enforce positive performance. Unfortunately, despite the genuine efforts of a committee, a caretaker may be unwilling or unable to satisfactorily perform their duties. In these circumstances we can advise the committee as to the sometimes tricky breach notice and termination process.
If your committee is concerned as to your caretaker’s performance then we recommend a meeting to discuss your options.
MHL commercial legal services focus on your business needs:
- documenting agreements incl service contracts, licenses, distribution agreements, settlements – whatever you need we can provide
- legal advice & strategy, especially in body corporate, disputes resolution, advertising, sales, trade practices, contracts, automotive and manufacturing
- client, supplier & competitor management & disputes advice,
- compliance services including trade practices, ethics, privacy programmes,
- legal documentation including contracts, letters, agreements, franchise, dealer, supplier, distributor, license, forms, disclaimers, advertising, etc
- negotiation advice, strategy, representation & management of litigation
- legal & risk management audit & reporting services
staff education and training
MHL has extensive experience in drafting and reviewing body corporate documentation. Bodies corporate are responsible to ensure their legal documentation is compliant, appropriate and effective, containing all relevant safeguards.
Your body corporate will need these and many other contractual documents reviewed:
- caretaking agreements
- letting agents agreements
- security providers agreements
- refurb/ painting contracts
- facility share agreements
- and so on.
We can draft, amend, audit and review documentation to ensure it meets your objectives.
TALK TO US ABOUT YOUR NEEDS!
Defamation occurs when a person ‘publishes’ a comment about another person that tends to lower the second person’s reputation. Unfortunately it is not uncommon in bodies corporate for defamatory comments to be made in meetings or by email.
MHL has acted for a number of people who have been defamed or who have been accused of making defamatory comments.
There are strict and short time limits for steps to be taken in a defamation action, so please do not delay seeking our advice if you have any concerns.
Sometimes difficult situations arise where a body corporate is requested to spend significant funds to accommodate a person’s new or evolving needs as a result of a disability.
MHL has advised schemes about discrimination claims. Please take any allegation of discrimination seriously and do not delay in seeking advice.
MHL has represented bodies corporate in a variety of matters concerning exclusive use over areas such as storage areas, car spaces, roof tops, courtyards and restaurants. We have had exclusive use grants set aside and unreasonable opposition to grants overturned. We have also successfully represented owners opposing a grant of exclusive use to a penthouse owner.
A body corporate must ensure that it is financially healthy by raising and collecting levies from lot owners. Unfortunately, there are times where owners are unable or unwilling to pay their levies, and these may amount to significant debts.
MHL has an innovative and rapidly growing debt recovery practice. We assist dozens and dozens of bodies corporate to recover unpaid levies of any amount. Recent recoveries range from $1,000 all the way to over half a million dollars. We are efficient, proactive and tenacious at every stage – from letter of demand, through to settlement agreements and litigated recovery if necessary.
Other firms may offer a cheaper service, but we offer one that is proactive, efficient and effective. We have a track record of achieving positive results and do our best to recover debts outstanding. Please speak to Peter Hunt to see what we can do for your body corporate in this important area.
MHL has represented bodies corporate involving licences and contracts for: pontoons/marina berths, telecommunications, recreation clubs, the construction of the Skywalk at Q1; and ground anchors. As experienced lawyers with larger firm experience, we can offer high level advice, drafting and negotiation services to suit every license or contractual arrangement.
Whatever the issue, the chances are that MHL will have advised on that issue or a similar one before.
As buildings age it is inevitable that major works will have to be undertaken to preserve a building and to update its facilities. The relevant contracts can be for $ millions.
Usually the contractor will provide the body corporate with a contract drafted or approved by its lawyers. We always recommend that a prudent committee should seek advice to protect the interests of owners. It is important to understand the legal implications of contracts and to understand when amendments, insertions or changes need to be made.
MHL has advised bodies corporate in respect of major contracts involving: pool refurbishments; painting contracts; balustrade replacements; and window replacements.
When a caretaker seeks a remuneration review the process is rarely straightforward. Among the problems we have encountered are that: the relevant clause is so poorly worded that it is difficult to implement or it may even be invalid; or the time for the review may have passed, or the remuneration review process is flawed.
Remuneration reviews often result in an increase in the caretaker’s remuneration and that means an increase in levies. Committees should protect themselves from criticism, and the owners from unnecessary increases in levies, by seeking legal advice on every review.
MHL has significant experience in remuneration reviews and can assist with any query about the processes.
Many buildings are known by a name other than their actual a street address, and the use of that name can be a source of dispute between the caretaker/letting agent and offsite agents. Prominent disputes have involved Q1 and Circle on Cavill. A Body Corporate or an offsite letting agent can therefore find itself involved in such a dispute.
MHL has advised parties as to their rights to use trade marks. We strongly recommend that anyone who is alleged to have infringed a trade mark seeks advice without delay.
It is very common for a caretaker/letting agent to seek to increase the potential term of their agreement by adding an option, in order to increase their security of tenure or to maximise the value of the agreement for a forthcoming sale.
Variations are not straightforward.
A committee should seek legal advice as the body corporate is being requested to execute legal documents (usually) prepared by a lawyer and which often affect existing agreements.
MHL reviews many variations each year, providing clear explanations as to content and recommendations as to risks. We work with our instructing committee to ensure that any variation is in acceptable form and in the best interests of the body corporate.