Understanding your caretaking duties

22 December 2020

There is no doubt that there are today many more disputes about caretaking duties. Most of these are a consequence of the body corporate’s expectations of what the manager should be doing differing greatly from the manager’s expectations. This variance in expectations is more often than not due to caretaking agreements with duties that are generic, vague and non-descriptive.

There are many caretaking agreements around which are decades old and no longer appropriate for the complex. Whilst they are in obvious need of updating and variation, there is little apparent incentive for the manager to accept a body corporate’s proposal to do so.

Consider a complex containing large common property lawn and garden areas and an agreement which requires the manager to “mow lawns and maintain gardens regularly”. The obvious question is how frequently must this duty be performed? Perhaps unsurprisingly it is often the case that the parties have very different expectations about that and a dispute will arise. Whilst resolving the dispute will involve an objective determination of what “regularly” means, with regard being had to the nature of the complex, the agreement overall, the time taken to perform the manager’s overall duties and the remuneration the manager is paid, this is an uncertain way to have to interpret what could, and should, have been very simply stated in the agreement in the first place.

To overcome these problems we are seeing more and more instances of a body corporate and manager engaging an independent expert to conduct a time and motion study of the caretaking duties. This determines the time and frequency of the duties applicable to the complex and the appropriate remuneration for those duties. The parties can negotiate a reduction or increase in the frequencies and a corresponding variation in the remuneration, then incorporate the changes in the existing agreement or in a new agreement.

The body corporate receives the benefit of an agreement which contains a tailor made comprehensive and detailed schedule of duties with the assurance that the manager is appropriately remunerated. The schedule removes the vagueness of duties, particularly where expressions such as “regularly”, “as required” and “as necessary” were once used. Instead, the schedule sets out a clear frequency of the duties (i.e. daily, weekly, monthly, and annual performance) together with a specific description of the particular task.

The manager gains the benefit of absolute clarity around the caretaking duties and will usually have been able to negotiate an increase in the remuneration or some other benefit such as support for a top up or new longer term agreement.

Some managers are concerned about seemingly having to do more under a tailored schedule of duties than what is required of them without such a schedule. This is a common misperception. While it might appear that the schedule extends beyond what the agreement initially contained, in most cases it is just reiterating in a clear and concise way what was always required and removing opportunities for disputes.

If you are experiencing constant scrutiny about the performance of your duties, it is prudent to understand exactly what your agreement requires of you. If it is apparent that your duties are ambiguous and the cause of disagreement between you and your body corporate, you should consider proposing a time and motion study for your complex. If done properly, the outcome is likely to be an improvement in the understanding of the agreement by both parties and in your relationship with your body corporate.