Published: 27 April 2010.

Contributed by Frank Higginson of Hynes Lawyers

There are two codes of conduct for resident managers under the BCCM Act. One applies as a caretaking service contractor and the other as a letting agent. These codes of conduct are deemed to be part of every caretaking agreement and letting agreement.

For all intents and purposes they include relatively similar duties, which include, amongst other things, obligations to:

• act with honesty, fairness and professionalism;
• act with skill, care and diligence; and
• not engage in unconscionable conduct or fraudulent or misleading conduct.

We are currently seeing an increasing number of accusations against resident managers about breaches of the code of conduct in relation to committee elections and lobbying for motions.  These accusations will almost always arise because the resident manager does not support that person’s position on a matter (be it a motion, or committee nomination).

There is a provision in the code of conduct about body corporate managers not attempting to unfairly influence the outcome of election for a committee.  A resident manager is not a body corporate manager.  For the purposes of the Act a resident manager is known as a caretaking service contractor.  A body corporate manager is the person that provides administrative services to the body corporate – like issuing levy notices, convening meetings, taking minutes and the like.

There is nothing in either code that prevents a resident manager from lobbying owners.  As most of our readers would know, resident managers cannot be a voting member on a committee.  That aside, resident managers can, like all other owners, circulate correspondence promoting particular views. 
Resident managers talking to owners about why they should vote in a particular way on an issue, and putting forward a point of view, is not unconscionable conduct.  It is actually quite the opposite.  It is an exercise in free speech and expresses by action the desire to have an active involvement in the affairs of the body corporate, which is what the legislation encourages.

For further information and any management rights enquiries, please contact Frank Higginson on (07) 5504 9999

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