No extension required for your late community management statement
August 11, 2022
My daughter was born 7 days late. Since then she has effortlessly maintained a strict regime of unpunctuality. Last term, her tardy approach to scholarly, musical and sporting endeavours was punctuated with a late paroxysm of activity. Then, like an elastic band after having reached its maximum tension threshold, she catapulted back to her natural state of relaxation. Her saviour – the extension. Why spend countless hours during the term not watching Stranger Things, when you can just apply for multiple extensions and start and finish all of your assignments in one week? And when the report card shows no signs of the impending doom prognosticated in the penultimate week of term, the procrastination endures.
Our legislation provides the body corporate must lodge a new community management statement within 3 months of the date of the resolution that approved it. The Acts Interpretation Act 1954, provides that where the term “must” is used in relation to a power, it requires that power to be exercised. However, the relevant provision does not stipulate the consequences of non-compliance with that timeframe. You’d be forgiven for presuming a community management statement lodged after the 3-month time-limit was invalid. However, that doesn’t appear to be the case.
In Q-Place  QBCMCmr 208, the body corporate had approved the transfer of part of its common property to the applicant’s lot and due to circumstances beyond either party’s control, the new community management statement was not lodged in time. To ensure the new community management statement’s validity could not be challenged and to avoid the cost of calling and holding another general meeting (and the risk of the requisite resolution without dissent not being achieved a second time), the applicant (with the body corporate’s consent) sought an indulgence of time for lodging the new community management statement from an adjudicator.
The adjudicator dismissed the application on the basis the legislation did not empower him to approve non-compliance with the 3-month time-limit or to extend the 3-month time-limit. He then declared there’s no need for an adjudicator to have those powers anyway, since a CMS is not rendered invalid simply for being lodged late.
The adjudicator recommended, since both parties were in agreeance that the community management statement could be lodged, the body corporate lodge the new community management statement without further delay. In his closing remarks, the adjudicator said:
If some person wishes to challenge the validity of the lodgement or the CMS itself, they can bring an application to resolve that dispute, although I note it would probably be futile if that were their only basis.
What can we take from this decision?
Non-compliance with the 3-month time-limit for lodgement of a new community management statement will not, in itself, invalidate the community management statement (please note the position is different when the purpose of the new community management statement is to give effect to the reallocation of exclusive use areas – unless you obtain an extension from an adjudicator the reallocation of those areas will cease to have effect if the new community management statement is not lodged within 3 months).
So, there’s no need to apply for an extension and there’s no need to go back to another meeting for fresh approval.
The purpose of the 3-month time-limit is to ensure a new community management statement is recorded expeditiously once it is approved and to entitle an interested party to, for example, seek an order against the body corporate compelling it to lodge a new community management statement where the time-limit has expired.
The good news for committees is that those new community management statements that were unintentionally overlooked after the excitement of the annual general meeting last year (or the year before or the year before that) can still be lodged. Just make sure they are dated within 3 months of the time you lodge them or they’ll be rejected by the titles office (because the titles office interprets the 3-month time-limit differently to the adjudicator in Q-Place).
If you’re a purchaser of a lot in a community titles scheme, don’t be fooled into thinking the shiny community management statement on display at the titles office is the most recently approved one – you’ll need to conduct a thorough search of the body corporate records to be absolutely sure. Even if it is the most recent one, as discussed in this article, there’s no guarantee it’s valid.
This article has been contributed by Andrew Suttie, Nicholsons solicitors.
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