Section 205 of the Body Corporate and Community Management (BCCM) Act 1997 will apply, no matter what regulation module your scheme is registered under.
Q&As from the Access to body corporate records webinar
It may be a body corporate record. It would depend what the subject of the correspondence relates to. The developer may also be an owner or committee member and writing in that capacity. However, the body corporate is required to keep in the records correspondence both received and sent by the body corporate.
The body corporate can make sure that the developer has handed over the required documentation and materials at the first annual general meeting (Section 79 of the Standard Module). If they have not, a fine can be applied by the Magistrate’s Court. Records that are the developer’s personal business information do not fall within the jurisdiction of the BCCM Act or this office.
There is no restriction in the legislation about accessing AGM paperwork before the AGM notice is sent out.
Yes, section 203 of the Standard Module states that the body corporate must keep documents evidencing each engagement of a body corporate manager or service contractor, and each authorisation of a letting agent.
Previous contracts of engagement are a body corporate record, if they have not been disposed of. Written engagements can be disposed of after 6 years if it no longer has any relevance to the body corporate.
If the body corporate owns the CCTV system, adjudicators have stated that the recordings are a body corporate record. Owners have the right to access CCTV footage. It depends on the system for how long the footage is stored and the body corporate needs to be aware of how that affects their responsibility to keep records. Adjudicators have stated that an owner or occupier would pay the applicable prescribed search fee to view footage as there are no copies to charge for per page.
You can read more in the fact sheet about CCTV surveillance in a body corporate.
Adjudicators have decided that audio recordings are a body corporate record, even if the device on which it is recorded is not body corporate property. Further, adjudicators believe that the location of the recording does not affect its status as a body corporate record.
The Act is silent on keeping draft minutes. If the record exists, before the minutes have been finalised, it may be requested by an owner.
The body corporate must keep full and accurate minutes of meetings. The legislation is silent about who prepares the minutes, but is usually it is the secretary. The minutes of meetings are a body corporate record, whether or not a body corporate manager is present.
An owner can write to the body corporate to ask the committee to make the decision to dispose of those records that they are able to. You can read about how long the body corporate must keep records before they can dispose of them on our website or refer to Section 203 of the Standard Module.
If the body corporate has obtained a certificate of currency from the insurance company, it will be a body corporate record. The prescribed fee for copies of documents is currently 65c per page but changes each financial year. While a body corporate doesn’t have to keep a certificate of currency in the body corporate records, if the body corporate has to pay a fee to the insurance company to obtain a certificate of currency, it is usually a cost to the body corporate and cannot be passed on to the person accessing the records.
The body corporate must keep documents evidencing engagements of a service contractor, accounting records and must keep for at least 6 years documents evidencing or detailing major repairs. There must be written evidence of payments made (e.g. invoices or receipts) so those documents are also body corporate records. Commissions must be disclosed before the body corporate makes its decision to enter into a contract for goods or services (section 135 of the Standard Module). That information should be part of the body corporate records as either associated general meeting material or as part of the contract.
All payments from the administrative fund or the sinking fund may be made only on receipt of a written request for payment or written evidence of payment such as a receipt. You can contact the Australian Tax Office for further information about the requirement to provide an original tax invoice.
If a body corporate is required to make BAS returns to the Australian Tax Office, they will be part of the body corporate records. All financial records about body corporate monies form part of the body corporate records.
Any correspondence sent out by the body corporate to owners will form part of the body corporate records, just as owners’ correspondence back to the body corporate forms a body corporate record.
There is no mention of digital communication channels in the legislation, other than email. SMS communications or Facebook posts may be an electronic body corporate record similar to emails on personal computers. This may be the case where digital communication is being used for body corporate issues. The records may not have to be gathered from the device they are stored on, but if they are a body corporate record, access to records must be granted under the Section 205 of the Act provisions. You can read more about keeping electronic communications in the Electronic Transactions (Queensland) Act 2001.
The caretaker’s personal business records may not be a body corporate record. Some documents may be both a body corporate record (e.g. invoices for work done on common property) and their own personal record.
Section 205 of the Act does not define who can be an agent. A simple dictionary definition of agent is “one who agrees and is authorised to act on behalf of another”.
Website portals are not mentioned in the legislation. You can write a request to the committee to make the decision to direct the body corporate manager to change the status of some of the documents or make all recent documents available to all owners. Any documents that are designated “committee” documents does not prevent an owner from accessing those documents via a search of the records. Adjudicators have stated that even if records are available via an online portal, the body corporate must still give owners access to or copies of the records if requested.
The definition of an interested party includes a person who satisfies the body corporate of their proper interest in the body corporate’s records. Alternatively, as an owner in a subsidiary scheme, you may be able to demonstrate your proper interest and show that you are an interested party who can access the principal body corporate’s records.
There is no requirement in Section 205 of the Act to seek permission from the committee before complying with the statutory requirement to provide the records. However, if there is a question about legal privilege or whether the person is an interested party the body corporate manager should refer the matter to the committee for their decision. The body corporate manager cannot make a decision about whether a person is entitled to access records or not or whether to give copies of records or not, unless they are engaged in place of the committee.
The body corporate must provide access to or copies of records within 7 days of receiving a written request and payment of the prescribed fee, or an offer to pay the prescribed fee if you do not know how many pages are in a record you have requested.
The legislation does not specify calendar days. If the last day of the 7-day period falls on an excluded day (i.e. a non business day), the Acts Interpretation Act 1954 deems the next business day as the last day for compliance.
Yes, even if you have not paid a copying fee, adjudicators have stated that the body corporate manager or body corporate should advise you of the cost within 7 days.
The owner of the lot must update the body corporate roll within 2 months of becoming the owner with their name and address for service. Their solicitor will usually do this task. While mortgages are registered on the title information at Titles Queensland, there is no requirement for mortgagee details to be listed on the body corporate roll while an owner is in possession of the lot unless the lot is subject to a mortgage and the mortgagee enters into possession of the lot, it is only in those circumstances that the registered mortgagee must advise the name and residential or business address for the roll. (Section 193 of the Standard Module)
An owner can obtain the contact details of owners, or occupiers (tenants) if it is listed on the body corporate roll or stored in some way in the body corporate records. The Australian Privacy Principles allow the release of personal information if the release of the information is authorised by another Act.
The Information and Community Education Unit cannot interpret an adjudicator’s order. Importantly, each adjudication order is made specifically to the facts of the case and the scheme.
In relation to owners accessing email addresses, the committee could set up a policy that communications are to go to the body corporate manager or a main/generic committee email address that can be set up. If a committee member uses their personal email address for communication with other committee members or the body corporate manager, their email address will become part of the body corporate records. This can apply to owners and committee members.
An owner can obtain the contact details of owners, or occupiers (tenants) if it is listed on the body corporate roll or stored in some way in the body corporate records. The Australian Privacy Principles allow the release of personal information if the release of the information is authorised by another Act.
Adjudicators have stated in many orders that email addresses form part of the body corporate records. Owners can access the records under Section 205 of the Act. The Australian Privacy Principles state that where another act permits the release of personal information, it must be released. In this situation, the body corporate may wish to obtain legal advice about whether an owner ticking a box can remove the statutory rights for access to records. If an owner does not want an email address to be part of the records they can choose not to use that address and use one they have set up for body corporate purposes.
Whilst there is no requirement for owners to provide email addresses and phone numbers to the body corporate, if they are on the roll, then a copy of the roll must be provided to the requesting owner “as is” and phone and email addresses are not, for example, to be blacked out or omitted.
Read the adjudicator’s order Parkside Gardens [2016] QBCCMCmr 576 (15 December 2016) for more information.
The minimum that must be included in the body corporate roll is the owner’s name and address for service. If an owner chooses to provide an email address or phone number, adjudicators have stated in many orders that they also form part of the body corporate records and that owners can seek copies of documents containing personal information. The federal privacy laws state that where another act permits the release of personal information, it must be released.
Read the adjudicator’s order Parkside Gardens [2016] QBCCMCmr 576 (15 December 2016) for more information.
No, the only defined restrictions on access relate to whether the correspondence is privileged from disclosure (e.g. legal advice about a threatened or current proceeding between the body corporate and the person) or the body corporate believes it contains defamatory material (Section 204 of the Standard Module). Adjudicators have stated that the interested person requesting copies of documents needs to provide a reasonable level of detail so that the body corporate can readily identify the document.
No, a committee member does not have to pay to access body corporate records, however, they are required to pay the prescribed fees should they request copies.
Decisions cannot be made at a general meeting if the motion is not on the agenda. A “discussion” at a general meeting is not a decision. Even if it was a motion on the agenda that passed, the person seeking to access the records must still comply with Section 205 of the Act and seek copies or access in writing and pay the applicable prescribed fee.
Section 205 of the Act does not define what a copy is. Adjudicators have stated it can be a hard copy, posted, emailed, or given in other electronic formats.
The legislation uses the term “copy of a record” in relation to the prescribed fees for copies. It does not make a distinction between a hard or electronic copy.
In relation to charges for posting hard copies, some adjudicators have stated that if an owner requests hard copies which require postage and lives interstate or overseas, the body corporate may be able to ask the owner to cover the postage cost.
Other adjudicators’ orders have stated that a fee for postage is not legislated and may not be claimed by the body corporate. It is part of the administrative costs to the body corporate.
Charging for postage could be decided on a case by-case basis, particularly if an owner lives at a distance, is not able to physically collect the records, has asked for a large amount of copies and is not able to receive them electronically as examples the body corporate could take into consideration.
The body corporate must provide copies of documents that have been requested. Sending electronic copies may save on postage costs to the body corporate but may add to the administrative costs for the time being taken to scan the documents.
Section 205 of the Act states that an interested person must be given a copy. It does not prescribe whether the copy must be hard or electronic. The owner could ask the committee to direct the body corporate manager to provide the records in electronic format to save on printing and administrative costs being charged to the body corporate.
Committee members must be given reasonable access to the body corporate records (Section 204 of the Standard Module). Adjudicators have stated that the body corporate can charge the copying fee to a committee member.
Adjudicators have stated there is no time limit on searching, other than practical business hours for example. Body corporate records may be searchable at different locations even if they are not held centrally with the rest of the body corporate records.
If you only want copies and do not know the number of pages for calculating the copying fee, you can ask the body corporate to tell you the number of pages within 7 days. Once you have paid the fee, the body corporate has 7 days to provide the copies to you.
An owner can ask for a copy of all email correspondence as it forms part of the body corporate records. The body corporate must provide copies of the documents once the owner has been advised of the applicable copying fee and they have paid the fee. The owner must reasonably identify the documents they want.
In writing includes via an email request. Adjudicators have stated that emails are considered to be in writing. See the Electronic Transactions (Queensland) Act 2001 for more information.
Section 205 of the Act states that the body corporate must give records after receiving a written request. This section does not state there must be a prescribed or approved form. Our office developed the BCCM Form 12 to assist those who want to access the records. This is what is known as an “office” form. A “prescribed” form is a form that legislation states must be used.
The Form 12 must be sent to the person holding the records, whether the body corporate manager or the committee. If you do not know where the records are located, you could send your written request or Form 12 to both.
The legislation does not define where records must be kept.
An owner can request to inspect the body corporate records wherever they are located.
The legislation does not define where records must be kept, it simply requires that the body corporate must keep certain records and give access when a written request and prescribed fee has been paid. Records can be stored in archives off site from a body corporate manager’s office.
Adjudicators have stated that it is within the aims of the legislation that a committee member and/or an “interested person” may peruse all the body corporate records, not necessarily knowing what he or she is looking for after payment of a fee where relevant. This can include body corporate records which are located in various places and electronic records.
Read the adjudicator’s order Ocean Resort Village (No.1) [2017] QBCCMCmr 295 (15 June 2017) for more information.
If the body corporate or body corporate manager on behalf of the body corporate is refusing to give electronic copies when they exist, an owner or an occupier could lodge an expeditable application for adjudication (see Practice Direction 19) with this office.
The fees for accessing the body corporate records are listed on our website and updated each financial year. They are located in Section 205 of the Standard Module, if you have downloaded an electronic copy with the most current fees.
As at 1 July 2018: The cost to inspect the records if you:
- are a lot owner—$17.25
- are not a lot owner—$33.15.
To get copies of body corporate records, the fee is $0.65 a page.
There is no provision to waive the prescribed fees for access to records, except that committee members must be given reasonable access to the body corporate records without payment of the prescribed fee.
Adjudicators have stated that a person needs to provide a reasonable level of detail so that the body corporate can readily identify the document. The body corporate is not required to read through each document to identify whether it contains the requested information. Adjudicators have also ordered that the person requesting access to the records or copies only has to pay the prescribed fee. All other cost associated with access may be payable by the body corporate under the terms of engagement with the body corporate manager.
The legislation does not prevent an owner from taking their own notes or using technology to photograph or scan records as long as an owner does not damage the records in that process. The prescribed copying fee is for the body corporate to supply a copy of the record. If no copy is supplied, then there is no copying fee to be charged.
You can read more about this in order Q1 [2013] QBCCMCmr 235 (7 June 2013).
A body corporate manager can only charge the interested person the prescribed fee. Any other charges they can make will usually be part of terms of their contract with the body corporate. The body corporate manager can charge the body corporate for the work they do on behalf of the body corporate according to the charges approved in their contract of engagement.
The person accessing the records is only liable for the prescribed fee. If there are other charges that can be made under the terms of the body corporate manager’s contract with the body corporate, they may be able to charge the body corporate for things such as electricity usage.
In regards to GST being added to the prescribed fees, adjudicators have stated that GST is not applicable. However, to be sure, you could obtain a determination from the Australian Tax Office (ATO) as charging of GST falls under the ATO’s jurisdiction. The Information and Community Education Unit provides training to stakeholders. We are now providing the webinars on this topic and prescribed fees for accessing body corporate records are explained in many adjudicators’ orders and on the website.
It is correct only when your scheme is registered under the Specified Two Lot Scheme Module. All other regulation modules provide that the person accessing the records must pay the prescribed fee for each request to access the records.
Within 7 days of receiving a written request, accompanied by the applicable prescribed fee the body corporate must either permit access to inspect the records or give the copies of documents that have been identified. The prescribed fee must accompany the request and the 7 day time frame commences when both the written request and the prescribed fee has been received. There is no obligation for the body corporate to give a record before the prescribed fee has been paid.
Interested parties who can access the records include an agent acting for an owner, so a power of attorney could be seen as an “agent”.
If the request is for all the STD calls made by a management company they may not be considered a body corporate record. If they are a record, the person requesting the record needs to be specific about what they want. The person accessing the records can only be charged a copying fee per page for documents.
If the secretary holds body corporate records, they can charge the prescribed copying fee or the prescribed search fee only. The fee is given to the body corporate.
Providing a disclosure statement is the responsibility of the seller of the lot. As such there is no prescribed fee for it to be provided by the body corporate. A body corporate manager can charge their own fee to an individual who requests a body corporate manager to prepare disclosure statement.
Alternatively, an owner can probably find most of the information for the disclosure statement in their AGM paperwork and minutes. Any other information an owner needs to prepare the disclosure statement can be obtained by the owner seeking copies of documents or searching the body corporate records and paying the prescribed fee to the body corporate to do so.
There are only the 2 circumstances that the committee cannot give access to body corporate records 1. It reasonably believes the document has defamatory material in it and 2 if a legal proceeding has commenced or is threatened and the records are privileged from disclosure (Section 204 of the Standard Module).
The body corporate is not required to allow a person access to records if a legal proceeding between the body corporate and the person has started or is threatened (Section 204 of the Standard Module).
For more information about documents being privileged from disclosure, you can read the following orders:
Adjudicators have stated: “…Most lawyers’ invoices, by their very nature, cannot be subject to legal professional privilege. This is because legal professional privilege attaches to confidential communications (in most cases, documents) that are for the dominant purpose of seeking or providing legal advice, or for use in existing or anticipated legal proceedings. Invoices do not meet this criterion.
There may be a rare exception however, where the invoice is so detailed that it reveals information that would be subject to legal professional privilege. This would only cover information in the description of the work, not dates and costs, and it would only cover those portions of the work description that is subject to legal professional privilege or where its inclusion makes the description subject to legal professional privilege. In those circumstances, the privileged parts can be blacked out…”
Adjudicators have stated in various orders that legal professional privilege applies in judicial and quasi-judicial proceedings and to statutory forms of compulsory disclosure. Read the order Clarendon on Spence [2008] QBCCMCmr 350 (30 September 2008) for further information about legal advice relating to an adjudication process potentially being privileged from disclosure.
Other orders relating to legal professional privilege:
Yes, you can. If you are an owner or occupier in the scheme and you have requested access to records in writing and paid the prescribed fee or attempted to, you can lodge an application for adjudication (see Practice Direction 19) with this Office. Such an application may be appropriate to be expedited.
The person seeking access to records needs to show evidence of self-resolution with the body corporate (as well as the body corporate manager ideally) about the attempt to charge amounts on top of the prescribed fees. If the person seeking access to the records is an owner or occupier, and they have attempted to pay the prescribed fee with their written request, they can lodge an application for adjudication (see Practice Direction 19) with this office.
An expeditable application is an adjudication application that may be able to be processed more quickly due to the nature of the dispute or that it is declaratory in nature. The Commissioner’s decision whether to expedite an individual application will depend on the nature and circumstances of the application. The time period of the application may be shortened or it may be dealt with before other applications. The issue may be declaratory in nature - i.e. no actual dispute such as a change of financial year end date. Please read Practice Direction 19 for more information. Applications about access to records are a type of application that we would typically (but not automatically) consider as suitable to be expedited.
Section 205 of the Act provides that there is a maximum penalty of up to 20 penalty units for not giving access to inspect or copies of specified documents. A penalty can be applied by the Magistrate’s Court. The interested person seeking access to the records would need to lodge an application with the Magistrate’s Court. The respondent would be the body corporate however it may be possible for the courts to order an amount payable by the body corporate be paid by owners of particular lots in the scheme (Section 314 of the Act). The current value of a penalty unit is $130.55.
For example, a recent Magistrate’s Court decision applied fines and costs in a process to enforce an adjudicator’s order. The adjudicators order was enforced because a committee member and a body corporate manager failed to supply body corporate records as ordered.The committee member was fined $7,000 and ordered to pay $11,000 costs and the body corporate manager was fined $3,000 and ordered to pay $11,000 costs.
The Commissioner’s Office is not an enforcement body and so therefore cannot apply fines. The person seeking the documents can apply to the Magistrates’ Court to have a fine applied.
The body corporate can seek the return of body corporate records or property from the person holding the property. The committee must make a decision to seek back the body corporate property. A copy of the decision (the prescribed notice) must be given to the person holding the records or property. The person holding the property has 14 days to return the property to the specified person at their own cost. (Sections 206 and 207 of the Standard Module).
The body corporate owns all the body corporate records. The only records that cannot be taken from a body corporate manager are their own personal business records. All records relating to the body corporate and body corporate’s decisions, financial management and communications will usually be body corporate property that must be returned to the body corporate at the end of a contract.
Read more about the return of body corporate property in the Centrepoint Arcade [2018] QBCCMCmr 121 (8 March 2018) order.
Within 2 months of a 6 month lease being signed, the owner of the lot must update the body corporate roll with the tenant’s name and address for service. The owner must also list the name and address for service for any person engaged to let the lot on behalf of the owner.
The former owner is not responsible for notifying the body corporate of the new owner’s name and address for service. If the new owner (or their solicitor on their behalf) have not notified the body corporate of the owner’s name and address for service within 2 months of the purchase of the lot, the body corporate must use the last notified address for service (Section 194 of the Standard Module).
The body corporate can decide to issue a request for information for the body corporate roll (BCCM Form 9) to the current owner. The owner must supply the information within at least 28 days. A penalty of up to 20 penalty units can be applied by the Magistrate’s Court (Section 203 of the Act). Alternatively, the body corporate could make the decision to lodge a dispute resolution application with the Commissioners Office about the failure to update the body corporate roll.
The Commissioner’s Office has developed the BCCM Form 8 for owners to provide information for the body corporate roll. However, it is not a prescribed form. An owner is required to update the body corporate roll details in writing. The Form 8 is a simple way for an owner to include all the information they are required to provide. It does not matter how the lot is managed the information must be provided to the body corporate.
If the current owner has not notified the body corporate of their new address for service, the body corporate must use the last notified address for service. (Section 194 of the Standard Module).
From a practical perspective, the body corporate can consider taking reasonable steps to locate a lot owner. Options might include an electoral roll search or even as simple as a Google search.
The legislation does not specify whether records must be kept in electronic or hard copy formats, it simply lists what records must be kept and for how long (Sections 202 and 203 of the Standard Module). The following is specified as being able to be kept in electronic format but it doesn’t prevent other documents from being kept electronically:
- Minutes of committee meetings and general meetings, including attachments.
- The body corporate roll.
- Registers the body corporate is required to maintain.
See the Electronic Transactions (Queensland) Act 2001 for more information about keeping written and electronic communications.
You can read about how to enforce adjudicators’ orders through the Magistrate’s Court.
The body corporate can seek the return of body corporate records or property back from the person holding the property. The committee must make a decision to seek back the body corporate property. A copy of the decision (the prescribed notice) must be given to the person holding the records or property. The person holding the property has 14 days to return the property to the specified person within 14 days at their own cost (Sections 206 and 207 of the Standard Module).
If the records stay in the possession of a previous committee member, an owner can still seek access to those records.
A secretary cannot make decisions individually (except in the Small Schemes Module if there is only 1 committee member). The way owners and committee members communicate with each other is not prescribed in the legislation. It would require a decision of the committee or the body corporate at general meeting to set the internal communications processes for your body corporate.
Audio or visual recording of meetings is not dealt with in the body corporate legislation. There are a number of adjudicators’ orders that have dealt with audio recordings of meetings. Adjudicators have said that a recording which is taken with the agreement of the meeting to assist with the preparation of minutes will be a body corporate record.
For the rights of individuals to record conversations that they are party to, please refer to the Invasion of Privacy Act 1971. You can also find more information on the Office of the Australian Information Commissioner website about surveillance and monitoring.
The BCCM Act and regulations do not specifically require that a copy of the survey plan and titles are kept in the body corporate records. However, it would be difficult for a body corporate to operate, set budgets, understand their maintenance responsibilities and calculate levies without this information being obtained from Titles Registry and a copy kept in the body corporate records. A body corporate manager can ask that the committee make the decision to obtain any relevant records if they are needed for the administration of the scheme.
There is no provision in the BCCM Act or regulations that states that a copy of the CMS must be provided to owners or committee members. The draft copy will be a body corporate record which is accessible. The recorded CMS will be available for anyone to obtain a copy of from Titles Registry. It is not required by legislation that the body corporate has a copy of the CMS in the records, but it would be difficult for the body corporate to operate correctly if they are not working with the most current version of the CMS.
Where there are 2 or more co-owners for 1 lot, there must be only 1 address for service for the owners (Section 194 of the Standard Module). The body corporate must send levy notices to the owner’s address for service or in the way directed by the owner (Section 142(3) of the Standard Module). As levy notices can be emailed (i.e. they do not have to be sent hard copy to the address for service), multiple lot owners could notify the body corporate of the email addresses they wish to have levy notices sent to. (Note that email addresses form part of the body corporate records and are searchable by other owners).