The Good, the Bad and the Ugly of Management Rights. Speaker: Kirsty Crawford 28 May 2010

Transcription

1 The Good, the Bad and the Ugly of Management Rights Speaker: Kirsty Crawford 28 May

2 Management Rights A bundle of rights supporting a caretaking and letting business: Legislation Caretaking agreement Letting authorisation By-laws restricting on-site competition Real estate 2

3 Legislation Body Corporate and Community Management Act 1997 Body Corporate and Community Management (Accommodation Module) Regulations 2008 Body Corporate and Community Management (Standard Module) Regulations

4 Caretaking Agreement Agreement between body corporate and caretaker Caretaker engaged as service contractor to take care of common property Set caretaking fee paid to caretaker by body corporate 4

5 Letting Authorisation Agreement between body corporate and letting agent Letting agent authorised to conduct exclusive letting business within scheme No fee paid by body corporate for provision of letting service 5

6 Entering Agreements BODY CORPORATE AND COMMUNITY MANAGEMENT (ACCOMMODATION MODULE) REGULATION SECT Authority to make engagement or give authorisation, or amend engagement or authorisation [SM, s 114] (1)The body corporate may (a)engage a person as a body corporate manager or service contractor; or (b)authorise a person as a letting agent; or (c)agree to an amendment of an engagement or authorisation mentioned in paragraph (a) or (b). 6

7 Entering Agreements (cont) (2) The body corporate may act under subsection (1) only if (a)the body corporate passes an ordinary resolution approving the engagement, authorisation or amendment and, for the passing of the resolution, no votes are exercised by proxy; and 7

8 Entering Agreements (cont) (b) the motion approving the engagement, authorisation or amendment is, for any of the following, decided by secret ballot (i) an authorisation of a person as a letting agent; (ii) an engagement of a person as a service contractor if the person is to be a caretaking service contractor; (iii) an agreement to amend a person's engagement as a service contractor, or a person's authorisation as a letting agent, to include a right or option of extension or renewal; and 8

9 Entering Agreements (cont) (c) the material forwarded to members of the body corporate for the general meeting that considers the motion approving the engagement, authorisation or amendment includes (i) for an engagement or authorisation--the terms of the engagement or authorisation, including (A) when the term of the engagement or authorisation begins and ends; and (B) the term of any right or option of extension or renewal of the engagement or authorisation; and (ii) for an agreement to amend a person's engagement as a service contractor, or a person's authorisation as a letting agent, to include a right or option of extension or renewal--an explanatory note in the approved form explaining the nature of the amendment; and (iii) for another agreement to amend an engagement or authorisation - the terms and effect of the amendment. 9

10 Entering Agreements (cont) (3) However, subsection (2)(b) does not apply if all the lots included in the community titles scheme have identical ownership. 10

11 Assignment of Agreements BODY CORPORATE AND COMMUNITY MANAGEMENT (ACCOMMODATION MODULE) REGULATION SECT Transferring engagements and authorisations [SM, s 122] (1) A person's rights under an engagement as a body corporate manager or service contractor, or under an authorisation as a letting agent, may be transferred only if the body corporate under the engagement or authorisation approves the transfer. (2) To avoid any doubt, it is declared that the approval may be given by resolution of the committee (unless the decision on the approval is a decision on a restricted issue for the committee) or by ordinary resolution of the body corporate. 11

12 Assignment of Agreements (cont) (3) In deciding whether to approve a proposed transfer, the body corporate may have regard to (a) the character of the proposed transferee and related persons of the proposed transferee; and (b) the financial standing of the proposed transferee; and (c) the proposed terms of the transfer; and (d) the competence, qualifications and experience of the proposed transferee and any related persons of the proposed transferee, and the extent to which the transferee and any related persons have received or are likely to receive training; and (e) matters to which, under the engagement or authorisation, the body corporate may have regard. 12

13 Assignment of Agreements (cont) (4) The body corporate must decide whether to approve a proposed transfer within 30 days after it receives the information reasonably necessary to decide the application for approval. (5) The approval may be given on condition that the transferee enters into a deed of covenant to comply with the terms of the engagement or authorisation. (6) The body corporate must not - (a)unreasonably withhold approval to the transfer; or (b)require or receive a fee or other consideration for approving the transfer (other than reimbursement for expenses reasonably incurred by the body corporate in relation to the application for its approval). 13

14 Assignment of Agreements (cont) (7) Subsection (6) applies subject to division 2. (8) In this section - related persons, of a proposed transferee, means - (a) if the proposed transferee is a corporation the corporation's directors, substantial shareholders and principal staff; or (b) if the proposed transferee is in partnership the partners and principal staff of the partnership. 14

15 Transfer Fee Amount paid by manager to body corporate on assignment Applies where assigned within 2 years of initial contract date - earlier of: Date assignor entered into agreements or took an assignment of agreements Original date of agreements where continually replaced or renewed 15

16 Transfer Fee (cont) BODY CORPORATE AND COMMUNITY MANAGEMENT (ACCOMMODATION MODULE) REGULATION SECT Amount payable on a transfer within the prescribed period--act, s 122(3) [SM, s 126] (1) For the Act, section 122(3), an amount (transfer fee) is payable by a transferor to the body corporate on a transfer of the transferor's rights under an engagement or authorisation to another entity within the prescribed period. (2) The transfer fee is (a) (b) if the day when the body corporate approves the transfer (the approval day) is not more than 1 year after the initial contract date for the engagement or authorisation of the transferor--3% of the amount representing fair market value for the transfer; or if the approval day is more than 1 year after the initial contract date for the engagement or authorisation of the transferor--2% of the amount representing fair market value for the transfer. 16

17 Transfer Fee (cont) (3) Despite subsection (1), but subject to section 125, no transfer fee is payable if a financier, as defined under the Act, section 123, is exercising a power of sale under the financier's charge over the engagement or authorisation; or the transferor is transferring the transferor's rights only because of a genuine hardship that was not reasonably foreseeable by the transferor on the initial contract date. (4) A transfer fee payable under the Act must be paid into the body corporate's sinking fund. 17

18 Termination of Agreements Agreements may be terminated: Under the BCCMA By agreement Under the terms of the Agreements themselves 18

19 Termination of Agreements (cont) BODY CORPORATE AND COMMUNITY MANAGEMENT (ACCOMMODATION MODULE) REGULATION SECT Termination for conviction of particular offences etc. [SM, s130] (1) The body corporate may terminate a person's engagement as a body corporate manager or service contractor, or authorisation as a letting agent if the person (including, if the person is a corporation, a director of the corporation) (a) is convicted (whether or not a conviction is recorded) of an indictable offence involving fraud or dishonesty; or (b) is convicted (whether or not a conviction is recorded) on indictment of an assault or an offence involving an assault; or (c) carries on a business involving the supply of services to the body corporate, or to owners or occupiers of lots, and the carrying on of the business is contrary to law; or (d) transfers an interest in the engagement or authorisation without the body corporate's approval. 19

20 Termination of Agreements (cont) (2) The body corporate may act under subsection (1) only if (a) the termination is approved by ordinary resolution of the body corporate; and (b) for the termination of a person's engagement as a service contractor if the person is a caretaking service contractor, or the termination of a person's authorisation as a letting agent--the motion to approve the termination is decided by secret ballot. 20

21 Restrictive By-laws Registered in community management statement (CMS) Restrict any other lots from being used for letting 21

22 Real Estate Residence Office On title Common Property 22

23 Occupation Authority Body Corporate and Community Management Regulations 2008 Accommodation Module: s134 Standard Module: s136 Introduced to enable body corporate to claw back office where agreements expire or are terminated 23

24 Occupation Authority (cont) 134 Occupation of common property by service contractor or letting agent (1) The body corporate may, by ordinary resolution, give a person (a property occupier) who is a service contractor or letting agent an authority (an occupation authority) to occupy a particular part of the common property for particular purposes necessary to enable - (a) if the property occupier is a service contractor--the property occupier to perform obligations under the property occupier's engagement as a service contractor; or (b) if the property occupier is a letting agent--the property occupier to operate as a letting agent. Example-- The body corporate might authorise a letting agent to occupy a particular part of the common property as a reception area, or a caretaker to occupy a shed on the common property for storage of tools and garden implements. 24

25 Occupation Authority (cont) (2) The body corporate may include in the terms of the engagement of a person (also a property occupier) as a service contractor, authority (also an occupation authority) to occupy a particular part of the common property for particular purposes necessary to enable the property occupier to perform obligations under the property occupier's engagement as a service contractor. (3) The body corporate may include in the terms of the authorisation of a person (also a property occupier) as aletting agent, authority (also an occupation authority) to occupy a particular part of the common property for particular purposes necessary to enable the property occupier to operate as a letting agent. 25

26 Occupation Authority (cont) (4) The body corporate may give an occupation authority only if the occupation of the part of the common property under the occupation authority would not interfere to an unreasonable extent with the use and enjoyment of a lot or the common property by an occupier of a lot. 26

27 Occupation Authority (cont) (5) An occupation authority-- (a)may include conditions with which the property occupier must comply; and (b)if given under subsection (1)--is taken to be a term of (i) for a property occupier who is a service contractor--the property occupier's engagement as a service contractor; or (ii) for a property occupier who is a letting agent--the property occupier's authorisation as a letting agent; and (c)may give the property occupier a right to exclusive occupation of the part of the common property the occupation authority relates to; and 27

28 Occupation Authority (cont) (d) may give the property occupier a right to exclusive occupation of the part of the common property the occupation authority relates to; and (e) must not be amended or terminated without the agreement of the property occupier (i) for a property occupier who is a service contractor--during the term of the engagement of the property occupier as a service contractor; or (ii) for a property occupier who is a letting agent--during the term of the authorisation of the property occupier as a letting agent; and (f) terminates immediately on (i) for a property occupier who is a service contractor--the engagement of the property occupier as a service contractor coming to an end or being terminated; or (ii) for a property occupier who is a letting agent--the authorisation of the property occupier as a letting agent coming to an end or being terminated. 28

29 Occupation Authority (cont) (6) Despite subsection (5)(c), a right a property occupier may have to exclusive occupation of a part of the common property is subject to the body corporate's right to authorise access to the part by others if the extent of the access does not unreasonably interfere with the occupation of the part by the property occupier. (7) A service contractor or letting agent may acquire rights to occupy part of the common property for the purpose of the service contractor's engagement or letting agent's authorisation, only under this section. 29

30 Value of Management Rights Value = Net Profit p.a. x Multiplier Income Sources: Caretaking fee: paid monthly in arrears from administration fund Letting commissions: paid by such owners who appoint the letting agent to manage their lot Other fees and commissions (e.g. cot hire, tour bookings) 30

31 Term of Agreements Factors into valuation Term depends on regulation module: Accommodation Module: 25 years max Standard Module: 10 years max 31

32 The Good Management Rights work well where: Right scheme: benefit from 24 hour on-site presence, especially short term lettings or holiday lettings Right ownership mix: majority of owners are investors who are not present to manage their lot Right manager: people skills, cooperate with body corporate 32

33 The Bad Management Rights problematic where: Wrong scheme: not set up for management rights from the outset Wrong ownership mix: conflicting interests of owner/occupiers, permanent tenants and short term guests Wrong manager: poor people skills, us and them mentality 33

34 The Ugly Litigation Manager protecting investment vs body corporate wanting to be released from agreements Time consuming, expensive (special levies) and stressful Body Corporate for Palm Springs Residences v Patterson Holdings Pty Ltd [2008] QDC

35 Dispute Resolution Mediation BCCMA- chapter 6 dispute resolution Applications to adjudicator QCAT- Queensland Civil and Administrative Tribunal 35

36 Unit sale issues Scenario: client engages you to act in the sale of their lot with vacant possession, then later you discover there is an appointment to let in place PAMD Form 20a Management Rights Class Order exemptions either party can terminate on 90 days notice 36

37 Unit Sale Issues (cont) What to do? Get a copy of the appointment to let Contact on-site agent, give notice and request any post settlement bookings to be moved Advise your client: (a) agent not legally bound to do so; (b) agent may be indemnified for any loss; (c) failure to give vacant possession to purchaser on settlement may result in termination of contract 37

38 Questions/Comments 38