The owners corporation for an ACT units plan is responsible for managing that plan, and its members are the unit owners; where a unit has several part-owners, each of them is a member. Access Canberra describes it as the legal entity once called a body corporate. A paid managing agent generally needs a real estate licence, full or conditional, under the Agents Act 2003, and unit title disputes can go to the ACT Civil and Administrative Tribunal (ACAT).
General informationAbout the ACT’s unit titles law, not legal advice about any units plan. The official pages are ACT Planning’s unit titles page, Access Canberra’s managing agent licensing page and ACAT’s unit titles disputes page. Access Canberra licenses real estate agents under the Agents Act 2003.
1Units, plans and the common property
A unit title is ownership of a defined part of a units plan, such as an apartment. ACT Planning sorts units into two classes. A Class A unit is bounded by its floors, walls and ceilings, like a single apartment in a complex; a Class B unit has a footprint on the ground, like a townhouse, its boundary a surveyed line around the land. A unit may also come with extra land or buildings, called unit subsidiaries.
The lease of the common property is granted to the owners corporation, which holds that property as agent for the owners, who share it as tenants in common in proportion to their unit entitlements. It must give every member the chance of reasonable use and enjoyment of the common property.
Some buildings hold more than one Crown lease as well as a units plan. For these, the Registrar-General may register a Building Management Statement, which sets out how the lessees manage the building and its shared facilities together.
2The executive committee
An executive committee comes into existence with the owners corporation and exercises its functions, as a general meeting directs by resolution or, without a direction, as the committee thinks appropriate. Until the first annual general meeting every member sits on it, and it may act only when a special resolution authorises it.
From then on, members are elected by ordinary resolution at each annual general meeting and serve until the next one. Each must be a qualified person: an owner, or the representative of a company or of part-owners, and never the manager or the manager’s associate. The committee elects a chairperson, a secretary and a treasurer, and one person may hold two or more of those posts.
- Its code of conduct
- Every executive member must act honestly and fairly, with reasonable care and diligence, in the owners corporation’s best interests unless that would be unlawful, and must disclose any conflict of interest to the committee.
- Its protection
- An executive member is not civilly liable for conduct carried out honestly and without recklessness in exercising, or reasonably believing they were exercising, a function under the Act.
- A communications officer
- A plan with 7 or more units may appoint one by ordinary resolution, though that officer must not try to mediate or settle a dispute.
3Managers, and the licence
No general rule requires a units plan to have a manager. An owners corporation that wants one appoints it by ordinary resolution, with the scope of the role decided at a general meeting, under a contract that states the manager’s pay and the functions handed over. The contract cannot run longer than 3 years, counting any renewal or extension.
Access Canberra lists who an owners corporation can appoint as its managing agent:
- a licensed real estate agent;
- a person holding a conditional real estate licence who means to act only as an owners corporation manager;
- a member of that owners corporation;
- a person who manages no other owners corporation and whose main income will not come from the role.
Put the other way, an appointed managing agent who holds no licence, is not a member, and earns their main income from the role needs a conditional real estate licence. A licensed agent keeps continuing professional development up as a condition of renewal and holds trust money in a trust account at an authorised deposit-taking institution in the ACT. The Commissioner for Fair Trading can take disciplinary action against a managing agent who breaches the law or the codes of conduct.
Whatever the licence, the Act’s code binds every manager: act honestly, fairly and professionally, never try to sway the election of the executive committee unfairly, and keep the owners corporation told of any significant development. The owners corporation must end the contract if the manager is absent, other than on approved leave, for 14 days in a row or 28 days in a 12-month period, or if incapacity substantially affects their work.
4The funds, and unpaid levies
Every owners corporation must set up an administrative fund for its general administration, and a plan with 4 or more units must also keep a sinking fund. Other funds for particular purposes can be set up by special resolution. Access Canberra notes that the administrative and sinking funds are not trust money and need not sit in trust accounts, and that even with a managing agent in place, the funds and their interest belong to the owners corporation and its banking is done in its name.
At each annual general meeting the owners approve, by ordinary resolution, a budget for the administrative fund and any special purpose fund. The sinking fund follows its own 10-year plan, approved by ordinary resolution, and reviewed within 4 years of first approval, then by the end of each 5-year period after that. The notice of a general fund contribution must give the date it is due if paid in full, no later than 28 days after the notice.
An amount not paid on time can be recovered from the owner as a debt, with interest. If the unit changes hands, the owner at the due date and every later owner are liable together. The owners corporation may also declare a charge over the unit’s lease to secure what is owed. ACAT can hear the claim in its civil jurisdiction, and some of the costs of chasing it, such as letters of demand, may be recoverable too.
5Disputes at ACAT
ACAT can help with some kinds of dispute arising under two Acts, the Unit Titles (Management) Act 2011 and the Unit Titles Act 2001; its own examples include keeping a pet, whether a resolution is valid or fair, and maintenance of the common property. Its page sets out the path in this order:
Try to settle it first
ACAT asks parties to try to resolve the dispute before applying. An agreement reached should be written down, signed and dated, and a copy kept.
Check who can apply
Owners and occupiers, the owners corporation, a current or former manager, the executive committee or one of its members, a service contractor, and a person granted a special privilege may be able to apply, though not everyone can bring every kind of dispute.
Apply, with the fee
The application goes on ACAT’s form for the Act, with the relevant documents, and a fee unless an exemption, waiver or deferral applies. ACAT staff can explain procedure but cannot give legal advice.
Other members may join
A member of the owners corporation may be told an application about it has been lodged, and may be able to apply to be joined as a party.
Appeal
A party who thinks ACAT got its decision wrong can appeal within 28 days of the decision.
The owners corporation, one of its creditors, a unit owner or another person with an interest recorded in the corporate register, or the director-general can ask ACAT for an administration order appointing an administrator. An administrator appointed under one takes over all the corporation’s functions, to the exclusion of the corporation and its executive committee. Meetings, records and votes are compared across the three places in what an owner can ask for, and the ACT’s rules in the guide to the rules.