Initial Period Restrictions – A Trap for Young Players

Introduction

We recently considered the restrictions that are placed on the powers of an owners corporation during the initial period of a strata scheme. Those restrictions exist to reduce the scope for a developer who controls an owners corporation to make decisions during the initial period that are not in the interest of the owners corporation. But what happens when those initial period restrictions are breached by a developer? What are the consequences for a developer? In this article we take a closer look at that issue.

The Initial Period 

The initial period of a strata scheme commences when the strata plan is registered and ends when the developer has sold lots whose unit entitlements are at least one third of the aggregate unit entitlement. Typically, during the initial period, the developer controls the owners corporation and the decisions that are made by the owners corporation because the developer owns the majority of the lots during the initial period. Over time, some developers have abused their powers during the initial period and have made decisions that are not in the interest of the owners' corporations that they control. In many cases, those decisions have involved the approval of building management or caretaker agreements that run for many years and that are on commercial terms that favour the building manager or caretaker.

Initial Period Restrictions

As a result of a perceived abuse of power by developers during the initial period, the strata legislation was amended to introduce restrictions on the powers of an owners corporation whilst it is under the control of a developer during the initial period. Some of those restrictions are now found in section 26 of the Strata Schemes Management Act 2015. One of those restrictions prevents an owners corporation from incurring debt for an amount that exceeds the amounts that are available for repayment of the debt from its administrative fund or its capital works fund. What does that restriction mean? And when can it be used against a developer? Those questions were considered in a case involving “The Carlisle”.

The Bondlake Case

“The Carlisle” is a strata building containing 139 apartments situated at 105-113 Campbell Street, Surry Hills. The strata plan for the building was registered in 1999. A little over one week after the strata plan was registered, the developer convened and held an extraordinary general meeting of the owners corporation. At the time of the meeting, the developer was still the owner of all of the lots in the building. At the meeting, the owners corporation passed a resolution to enter into a caretaker agreement for the appointment of a caretaker for a period of five years with three options for renewal each for five years. The caretaker agreement was signed on the day of the meeting.

A Breach of the Initial Period Restriction

The agreement required the caretaker to carry out specified duties for the owners corporation in return for a payment of a fee. The fee for the first year of the agreement was $84,042.00. The fee was payable by monthly installments the first of which was due on the date the agreement started. At the time the agreement started, there was no money in the administrative fund or the capital works fund of the owners corporation. Three days later the caretaker issued an invoice claiming payment of the first monthly caretaker fee.

The Owners Corporation’s Claim

The owners corporation claimed that the caretaker agreement had been entered into in breach of the initial period restriction which prevented the owners corporation from incurring a debt for an amount that exceeded the amount then available for repayment of the debt from its administrative fund or capital works fund. The owners corporation claimed that the breach of the initial period restriction meant that the caretaker agreement was invalid and null and void.

Was the Agreement Null and Void?

The NSW Court of Appeal agreed that there had been a breach of the initial period restriction because the court held that the owners corporation incurred a debt by entering into the caretaker agreement and became liable to pay the first monthly caretaker’s fee when the caretaker issued its first invoice and at that time the owners corporation had no money in its administrative fund or capital works funds. However, the court did not agree that this resulted in the caretaker agreement being null and void. The court said that the strata legislation did not intend that an agreement that was entered into by an owners corporation in breach of the initial period restriction would be rendered null and void. The court did not consider that it would be fair to visit upon innocent persons dealing with the owners corporation, such as the caretaker, the extreme consequence of invalidating their agreement and making it impossible for the innocent party to recover fees claimed under the agreement. This meant that the caretaker agreement would continue even though it was entered into in breach of the initial period restriction. 

Consequences for the Developer

One of the reasons the court concluded that the caretaker agreement was valid is because the strata legislation provided the owners corporation with remedies against the developer. For example, the legislation gives an owners corporation the right to recover from a developer any amount for which it is liable because of a breach of the initial period restriction on incurring a debt. In other words, the owners corporation of “The Carlisle” could have sued and recovered from the developer the fees it was liable to pay the caretaker under the caretaker agreement. Section 26 of the Strata Schemes Management Act 2015 still gives an owners corporation the right to sue and recover from a developer any amount for which it is liable because of a contravention of the initial period restriction on incurring a debt. A developer who is sued under that section is given limited protection by the legislation. The developer can gain protection if the developer can show that he or she did not know that the initial period restriction had been breached or was not in a position to influence the conduct of the owners corporation in relation to that breach or used due diligence to prevent the breach.

Conclusion

The purpose of the initial period restrictions is to protect the people who become owners in a strata scheme after the end of the initial period from burdensome arrangements entered into by the developer before the owners corporation comes under the control of the owners. A breach of those initial period restrictions by a developer can have dire financial consequences. For that reason, it is important for any developer to be familiar with the initial period restrictions that apply to an owners corporation and to be careful not the breach of those restrictions.