Caretaking duty disputes
By Frank Higginson01 Oct 2008
The vast majority of disputes we see in a management rights context involve the performance of the caretaking duties.
As you would expect, it is rare that we are engaged to advise about the non performance of a clearly detailed duty. Disputes about detailed duties are rare, primarily because they are well defined. The issue is black and white. The duty has been performed or it hasn’t.
Difficulties arise when the caretaking agreement does not contain the detail it could in relation to duties. As with any relationship, setting and delivery of expectations is the key. If the parties have different expectations of the other, then it follows that there is likely to be disquiet over performance at some stage.
So how do problems of this nature get solved?
The first thing we suggest is to avoid litigation if you can. We recommend litigation as a final step, but one that you must be prepared to take if there is no other viable alternative.
That aside, you need to start by assessing where you stand legally. Know your duties yourself. Read them in detail. If you have differences in interpretation popping up, get some legal advice on what the various duties mean. At least then you know where you are starting from.
It may be that your required duties do not reflect the prescribed duties. What has been practice for a number of years might not be reflected in the caretaking agreement.
The nature of the required duties may have changed over the years. For example, the agreement might reference floors being vacuumed daily, but the carpet that was originally installed may have been replaced by tiles.
The duties may not have been properly set in the first place, which is a common issue for off the plan agreements. Caretaking agreements that are disclosed to buyers in off the plan purchases are drafted well before the building is constructed. This means there is always going to be some errors.
Once you have determined the issues, it is time to talk to your body corporate representative about them. Ultimately, there are not too many legal issues with the actual caretaking duties. They should be clear and detailed. The more this occurs, the less chance there are for disputes.
In a perfect world, there would be an agreement reached about a new schedule of duties. We recommend detailed lists of duties, in terms of daily, weekly and as required duties. This way, everyone knows what is expected and when. These duties need approval at general meeting by ordinary resolution.
Taking this approach will save time, money and most importantly your relationship with your body corporate.