Part 4 Strata managing agents and building managers

(1) An owners corporation for a strata scheme may appoint a person who is the holder of a strata managing agent’s licence under the Property and Stock Agents Act 2002 to be the strata managing agent of the scheme.

(2) The appointment is to be made by instrument in writing authorised by a resolution at a general meeting of the owners corporation.

(3) The developer of a strata scheme, or a person connected with the developer, is not entitled to be appointed as the strata managing agent of the scheme until after the end of the period of 10 years commencing on the date of registration of the strata plan.

(3A) The Secretary may approve—

(a) the form of agency agreements for the appointment of strata managing agents, and

(b) the terms, conditions and other provisions that agency agreements for the appointment of strata managing agents must or must not contain.

(3B) The Secretary may approve 1 or more standard form of agency agreements for the appointment of strata managing agents.

(4) A reference in this section to a strata managing agent’s licence under the Property and Stock Agents Act 2002 includes a reference to a corporation licence under that Act that authorises the holder to act as, or carry on the business of, a strata managing agent.

(5) An owner who is seeking appointment as a strata managing agent is not entitled to vote or cast a proxy vote on the appointment at a meeting of the owners corporation.

(1) The term of appointment (including any additional term under an option to renew) of a strata managing agent for a strata scheme expires (if the term of the appointment does not end earlier or is not ended earlier for any other reason)—

(a) if the strata managing agent is appointed by the owners corporation at the first annual general meeting, at the end of the period of 12 months following that appointment, or

(b) in any other case, at the end of the period of 3 years following the appointment.

(2) A person may be reappointed by the owners corporation by resolution at a general meeting as the strata managing agent for a strata scheme at the end of the person’s term of appointment.

(3) The appointment of a strata managing agent may be terminated in accordance with the instrument of appointment if authorised by a resolution at a general meeting of the owners corporation.

(4) The term of appointment of a strata managing agent may be extended by the strata committee for successive periods of up to 3 months after it would otherwise expire (but not for any period that would extend beyond the date of the next annual general meeting of the owners corporation) pending a decision as to the reappointment of the strata managing agent.

(5) However, if a strata committee has extended a term of appointment of a strata managing agent under this section, the strata committee must give the strata managing agent at least 1 month’s notice of a decision not to reappoint the strata managing agent or not to further extend the appointment.

(6) A strata managing agent must give the owners corporation written notice of the end of a term of appointment—

(a) at least 3 months, but not more than 6 months, before the end of the term of appointment, and

(b) at least 1 month before the end of each extension of a term permitted by this section.

(7) An instrument of appointment of a strata managing agent for a period of 3 years (as referred to in subsection (1) (b)) is taken to include an option for the agent to extend the term of the appointment for a maximum period of 3 months after the end of the term of 3 years, if the owners corporation decides not to reappoint the agent and does not extend the term of appointment under subsection (4). The agent must give the owners corporation written notice of the exercise of the option.

(8) A strata managing agent is not entitled to exercise an option under subsection (7) if the owners corporation gives the agent written notice that the agent will not be reappointed at least 3 months before the end of the term.

(9) In this section, a reference to the appointment of a strata managing agent includes a reference to the reappointment of a strata managing agent.

(1) A strata managing agent may transfer his or her functions as a strata managing agent, but only if the transfer is authorised by a resolution at a general meeting of the owners corporation for the strata scheme.

(2) A person to whom the functions are transferred is taken to be appointed under this Division as a strata managing agent for the strata scheme.

(3) The term of appointment as a strata managing agent of the person to whom the functions are transferred ends on the same day as the term of the person by whom the functions were transferred would have ended if the transfer had not taken place.

(1) An owners corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent—

(a) all of its functions, or

(b) any one or more of its functions specified in the instrument, or

(c) all of its functions except those specified in the instrument.

(2) An owners corporation must not delegate to a strata managing agent its power to make—

(a) a delegation under this section, or

(b) a decision on a matter that is required to be decided by the owners corporation, or

(c) a determination relating to the levying or payment of contributions.

(3) A delegation may be made subject to the conditions or limitations as to the exercise of all or any of the functions, or as to time or circumstances, that may be specified in the instrument of delegation.

(4) An owners corporation may delegate the functions only if authorised to do so by a resolution at a general meeting.

(5) An owners corporation may, if authorised to do so by a resolution at a general meeting, revoke or vary a delegation under this section.

(1) A function delegated under this Division may, while the delegation remains unrevoked, be exercised from time to time in accordance with the delegation.

(2) Despite any delegation made under this Division, the owners corporation may continue to exercise all or any of the functions delegated.

(3) Any act or thing done or suffered by a strata managing agent while acting in the exercise of a delegation under this Division—

(a) has the same effect as if it had been done or suffered by the owners corporation, and

(b) is taken to have been done or suffered by the owners corporation.

(4) This section is subject to section 56.

(1) The instrument of appointment of a strata managing agent may provide that the strata managing agent has and may exercise all the functions of the chairperson, secretary, treasurer or strata committee of an owners corporation or the functions of those officers or the strata committee specified in the instrument.

(2) However, the chairperson, secretary, treasurer and strata committee of an owners corporation may continue to exercise all or any of the functions that the strata managing agent is authorised to exercise.

(3) Any act or thing done or suffered by a strata managing agent in the exercise of any function of the chairperson, secretary, treasurer or strata committee conferred on the strata managing agent in accordance with this section—

(a) has the same effect as if it had been done or suffered by the chairperson, secretary, treasurer or strata committee, and

(b) is taken to have been done or suffered by the chairperson, secretary, treasurer or strata committee.

(4) This section is subject to section 56.

(1) A strata managing agent who exercises a function of the owners corporation or of an officer of the owners corporation must, immediately after its exercise, make a record specifying the function and the manner in which it was exercised.

(2) The strata managing agent must, every 6 months, give the owners corporation a copy of the records kept for the preceding 6 months.

If a strata managing agent is appointed by the Tribunal, or by an owners corporation on an order of the Tribunal, to exercise a function—

(a) the function cannot, while the strata managing agent holds office, be exercised by any other person, and

(b) anything done or suffered by the strata managing agent in the exercise of the function has the same effect as it would have if it had been done or suffered by the person who, but for paragraph (a), could have exercised it.

(1) If a strata managing agent has been delegated a function by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force.

(1A) It is a defence to a prosecution under subsection (1) if the agent establishes that—

(a) the breach of the duty was caused by the owners corporation, and

(b) the agent took all reasonable steps to prevent the breach of the duty.

(2) A strata managing agent must not, in connection with the provision of services as a strata managing agent or the exercise of functions as a strata managing agent, request or accept a gift or other benefit from another person for himself or herself or for another person.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) otherwise—100 penalty units.

(3) Subsection (2) does not apply to—

(a) remuneration paid to a strata managing agent or an employee or contractor of a strata managing agent by an owners corporation, or

(b) a monetary commission provided to a strata managing agent, if the provision of such a commission is in accordance with the terms of appointment of the strata managing agent by the owners corporation or has been otherwise approved by the owners corporation, or

(c) a training service provided to, or paid for, a strata managing agent, if it was related to strata management functions and the provision or payment is in accordance with the terms of appointment of the strata managing agent by the owners corporation or has been otherwise approved by the owners corporation, or

(d) a gift or other benefit that has a value that is less than the amount prescribed by the regulations for the purposes of this subsection.

(3A) An owners corporation may only give approval under subsection (3)(b) or (c) by a resolution at a general meeting.

(3B) The motion for the resolution must be accompanied by a document prepared by the strata managing agent containing—

(a) details about the commission or training service, including—

(i) for a commission—the amount of the commission and the method of its calculation, or

(ii) for a training service—the monetary value of the training service or, if that is not known, an estimate of the monetary value of the training service, and

(b) details about the nature of the relationship between the person providing the commission or training service and the strata managing agent, and

(c) details about why the approval is in the owners corporation’s best interest, and

(d) a statement that the strata managing agent believes that accepting the gift or other benefit does not contravene the Property and Stock Agents Regulation 2022, Schedule 1, section 11 and the reasons for the belief.

(4) In this section—

gift has the same meaning as it has in the Electoral Funding Act 2018.

training service means a training course or service (including attendance at industry events such as conferences).

(1) An owners corporation may require a strata managing agent to provide the following information relating to the trust account that the agent is required to operate under the Property and Stock Agents Act 2002 —

(a) the name and number of the account,

(b) the name of the authorised deposit-taking institution in which the account is current,

(c) the balance in the account standing to the credit of the owners corporation on a specified date,

(d) particulars of all cheques drawn on the account on behalf of the owners corporation as at that date and not presented and duly paid.

(2) An owners corporation may require a strata managing agent to provide the following information relating to any other accounts on which the agent operates in the exercise of functions of the owners corporation—

(a) the names and numbers of the accounts,

(b) the names of the authorised deposit-taking institutions in which the accounts are current,

(c) the balance in each of the accounts standing to the credit of the owners corporation on a specified date,

(d) particulars of all cheques drawn on each of the accounts as at that date and not presented and duly paid.

(1) An owners corporation may require a strata managing agent to provide—

(a) full particulars relating to the payment of money to, or the receipt of money by, the agent on behalf of the owners corporation, and

(b) if the money is not still held by the agent, the manner and time of disposal of the money.

(2) An owners corporation may require a strata managing agent to provide full particulars of any specified transaction that has been entered into by the agent on behalf of the owners corporation.

(1) A strata managing agent for a strata scheme must report the following at the annual general meeting of the owners corporation for the scheme—

(a) whether any commissions or training services have been provided to or paid for the agent (other than by the owners corporation) in connection with the exercise by the agent of functions for the scheme during the preceding 12 months and particulars of any such commissions or training services,

(b) any such commissions or training services and the estimated amount or value of any such commissions or training services that the agent believes are likely to be provided to or paid for the agent in the following 12 months,

(c) whether, during the preceding 12 months—

(i) a supplier of goods or services for the strata scheme has become connected with the agent, or

(ii) an original owner of the strata scheme has become connected with the agent,

(d) the following information—

(i) the suppliers of goods or services for the strata scheme who are connected with the agent,

(ii) the original owners of the strata scheme who are connected with the agent,

(iii) for subparagraphs (i) and (ii)—details about the nature of the relationship between the agent and the supplier or original owner,

(iv) for subparagraph (i)—details about the goods and services provided by the supplier.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) otherwise—100 penalty units.

Note.

It will be an offence for an agent to receive commissions or training services that are not of a kind permitted by the agent’s terms of appointment or approved by the owners corporation (see section 57).

(2) A strata managing agent must, as soon as practicable after becoming aware that commissions or training services provided to or paid for the agent (other than by the owners corporation) differ from the commissions or training services or any estimate of them disclosed at the annual general meeting, disclose to the strata committee the variation and give an explanation for the variation.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) otherwise—100 penalty units.

(2A) A strata managing agent must give written notice to the owners corporation before entering into a contract for the purchase of goods or services if either or both of the following apply—

(a) under the contract, a commission or training service of the kind referred to in section 57(3)(b) or (c) may be provided to or paid for the agent,

(b) the contract is with a person connected with the agent.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) otherwise—100 penalty units.

(2B) The notice must include the following—

(a) details, including the specific provision of the terms of appointment of the agent, if relevant, that demonstrate the payment of the commission or provision of the training service is permitted under section 57(3),

(b) details about the commission or training service, including the following—

(i) for a commission—the amount of the commission and the method of its calculation,

(ii) for a training service—the monetary value of the training service or, if that is not known, an estimate of the monetary value of the training service,

(c) details about the nature of the relationship between the person providing the commission or training service and the strata managing agent,

(d) details about why the contract is in the owners corporation’s best interest,

(e) a statement that the strata managing agent believes that entering into the contract does not contravene the Property and Stock Agents Regulation 2022, Schedule 1, section 11 and the reasons for the belief.

(2C) A strata managing agent must give written notice to the owners corporation as soon as practicable after becoming aware of the following—

(a) a supplier of goods or services for the strata scheme becomes connected with the agent,

(b) the original owner of the strata scheme becomes connected with the agent,

(c) the agent acquires a direct or indirect pecuniary interest in the strata scheme.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) otherwise—100 penalty units.

(2D) The notice must include—

(a) for subsection (2C)(a) and (b)—details about the nature of the relationship between the agent and the supplier or original owner, and

(b) for subsection (2C)(a)—details about the goods and services provided by the supplier.

(3) The Tribunal may, on application by an owners corporation or the Secretary, order a strata managing agent to pay to the owners corporation—

(a) the whole or part of the amount or value of any commissions or training services provided to or paid for the agent and not disclosed in accordance with this section, or

(b) the whole or part of the amount or value of any commissions or training services provided to or paid for the agent that are not of a kind or an amount disclosed by the agent under this section, if the Tribunal is satisfied that the disclosure of those things at the previous annual general meeting was not made in good faith.

(4) In this section—

training service means a training course or service (including attendance at industry events such as conferences).

(1) An owners corporation is to require information from a strata managing agent under this Division by written notice given to the strata managing agent.

(2) The notice must specify a member of the strata committee to whom the information is to be delivered.

(1) A strata managing agent must comply with a notice to provide information under this Division by giving a written statement, containing the information required, within 14 days after the notice is given.

Maximum penalty—20 penalty units.

(2) A person is not guilty of failing to comply with the notice if reasonable cause for the failure is shown.

(3) A strata managing agent must not knowingly provide information that is false or misleading in a material particular in a statement given in response to a notice to provide information under this Division.

Maximum penalty—20 penalty units.

If a strata managing agent ceases to hold a licence under the Property and Stock Agents Act 2002 to carry on business as a strata managing agent or dies—

(a) this Division (except section 59) applies to any person who is required by that Act to maintain a trust account in connection with the business of the former licensee, and

(b) this Division (except section 58 (1)) and section 188 apply to any person who is required by that Act to preserve records kept by the former licensee,

A strata managing agent or other person is not required to provide information under this Division in relation to a transaction that took place more than 5 years before notice requiring the information was given.

Section 101 of the Property and Stock Agents Act 2002 does not apply to or in respect of a transaction if information about the transaction may be required to be provided to an owners corporation under this Division.

Note.

Section 101 of the Property and Stock Agents Act 2002 enables a person directly concerned in a transaction with a licensee under that Act to require an itemised account of the transaction from the licensee.

(1) A building manager is a person who assists in exercising any one or more of the following functions of the owners corporation—

(a) managing common property,

(b) controlling the use of common property by persons other than the owners and occupiers of lots,

(c) maintaining and repairing common property.

(2) However, a person is not a building manager if—

(a) the person exercises the functions of a building manager only—

(i) on a voluntary or casual basis, or

(ii) as a member of the strata committee, or

(b) the person, or a class of persons to which the person belongs, is prescribed as not being a building manager.

(3) A person may be both a building manager and an on-site residential property manager.

(4) A building manager may be a person who is entitled to exclusive possession (whether or not jointly with any other person) of a lot or common property in a strata scheme.

(5) For the purposes of this Act, a person is taken to be a building manager for a strata scheme if the person meets the description of a building manager set out in this section, regardless of whether the title given to the person’s position is building manager, caretaker, resident manager or any other title.

(1) A building manager may be appointed for a strata scheme.

(2) The appointment is to be made by instrument in writing (a building manager agreement) executed before or after the strata scheme commenced by the building manager and—

(a) by the original owner, if executed before the strata scheme commenced, or

(b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme, if executed after the strata scheme commenced.

(3) The Secretary may approve—

(a) the form of building manager agreements, and

(b) the terms, conditions and other provisions that building manager agreements must or must not contain.

(4) The Secretary may approve 1 or more standard form of building manager agreements.

(1) A building manager agreement (including any additional term under any option to renew it) expires (if the term of the appointment does not end earlier or is not ended earlier for any other reason)—

(a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed before the meeting, or

(b) when 10 years have expired after it commenced to authorise the building manager to act under it, in any other case.

(2) A person may be reappointed as building manager for a strata scheme at the end of the person’s building manager agreement.

(3) The appointment of a building manager may be terminated in accordance with the building manager agreement, if authorised by a resolution at a general meeting of the owners corporation.

(1) A building manager may transfer his or her functions as a building manager to another person, but only if the transfer is authorised by a resolution at a general meeting of the owners corporation.

(2) A person to whom those functions are transferred is taken to be appointed as a building manager by the building manager agreement.

(3) The term of appointment as a building manager of the person to whom the functions are transferred ends on the same day as the term of the person by whom the functions were transferred would have ended if the transfer had not taken place.

(1) A building manager may, in accordance with the building manager agreement appointing the building manager, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property.

(2) However, the owners corporation may continue to exercise all or any of those functions, subject to the building manager agreement.

(3) A person is not a strata managing agent for the purposes of this or any other Act only because the person is a building manager acting in accordance with a building manager agreement.

(1) A building manager must not, without reasonable excuse—

(a) fail to act in the best interests of the owners corporation, or

(b) breach a duty prescribed by the regulations.

Maximum penalty—

(a) for an individual—100 penalty units, or

(b) otherwise—200 penalty units.

(2) A building manager is not required to act in the owners corporation’s best interests if it would be—

(a) contrary to this Act or the regulations, or

(b) otherwise unlawful.

(3) The regulations may prescribe additional duties of building managers.

(1) A person appointed as the strata managing agent or building manager for a strata scheme who has an interest that must be disclosed under this section must disclose the interest to the owners corporation before the appointment of the person.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) otherwise—100 penalty units.

(2) The following are interests that must be disclosed to the owners corporation by a person—

(a) that the person is connected with the original owner,

(b) any direct or indirect pecuniary interest in the strata scheme (other than an interest arising only from the prospective appointment),

(c) that the person is connected with another person (the supplier) who routinely supplies goods or services for other strata schemes for which the person is the strata managing agent,

(d) that the person gave advice, whether under a formal contract or not, to the original owner during the previous 2 years about the strata plan or another strata plan or a community plan,

(e) another interest prescribed by the regulations.

(3) The disclosure must—

(a) be made in writing, and

(b) for subsection (2)(c), include—

(i) details about the nature of the relationship between the person and the supplier, and

(ii) details about the goods and services provided by the supplier.

(1) The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme—

(a) an order terminating the agreement,

(b) an order requiring the payment of compensation to a party to the agreement,

(c) an order varying the term, or varying or declaring void any of the conditions, of the agreement,

(d) an order that a party to the agreement take any action or not take any action under the agreement,

(e) an order dismissing the application.

(2) If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager.

(3) The Tribunal may make an order under this section on any of the following grounds—

(a) that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily,

(b) that charges payable by the owners corporation under the agreement are unfair,

(c) that the strata managing agent has contravened section 57(2),

(d) that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith,

(e) that the strata managing agent or building manager has failed to disclose an interest under section 71,

(f) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable,

(g) that the strata managing agent or building manager is carrying on a business involving the supply of services to the owners corporation, owners or occupiers of lots if carrying on the business is contrary to law.