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FAMILY LAW

Parenting arrangements for children up to school age

There are many factors that should be considered when determining an arrangement that is best for your children.

There are many other factors that should be considered when determining an arrangement that is best for your children such as parental conflict, practicality, special needs of the child including medical needs and risk factors in either parent’s household. The Family Law Act 1975 provides that children have a right to a meaningful relationship with both parents absent any risk to that child with either parent. Any arrangements should consider that child’s individual needs, their safety, and welfare.

While some children transition well to the new family dynamic and adjust relatively well to seeing one parent more than the other, most children struggle emotionally and psychologically and find it difficult to adjust to the drastic change. When we look at the 0 to 5-year old age bracket, social science tells us to be mindful of that child’s age and stage of development. Children of this age need stability, routine and consistency to thrive and meet all their developmental milestones.

One of the most common questions from parents of young children, is when can a child transition to overnight time with the non-primary parent? Unfortunately, there is no legislation or binding authority that provides that a child must commence overnight time with the other parent at a certain age. The answer is purely dependent on your child’s ability to cope with the separation from the primary parent and their common environment. Questions you should be asking yourself when trying to determine whether your child is ready for overnight time include:

Is my child breastfed?
If so, it is unlikely that the child can transition to overnight time unless the mother is willing and able to express breastmilk and the child will take a bottle feed. Generally, if your child is still breastfed he or she is likely too young to be spending overnights away from their mother. That being said, it is not uncommon for children to be breastfed into their toddler years and therefore both parents must consider what is best for the child in those circumstances and make arrangements that allow the child to spend meaningful time with the non-primary parent whilst still affording them the opportunity to be breastfed.

How much time does my child spend away from their primary parent?
If your child is spending 5 days a week in day-care or in the care of a person that it is not biologically related to the child, then it is likely that the child is used to spending time away from the primary parent and can transition to overnight time with the other parent.

What is my child’s routine when they are with their other parent?
You must be willing and able to maintain consistency and routine between households to give your child the best chance at coping with overnight time. Communication is key and whilst this is not always achievable with separated parents, tools such as email and communication books can help parents agree on uncontroversial issues such as nap times and feeding schedules.,

Am I available to care for my child during their overnight stay?
Newborns and toddlers require 24-hour care. This is not to say that you cannot leave your child with a trusted friend or relative but there is no substitute for the care of the biological parent. Generally, the Courts will want to ensure that a parent is caring for the child overnight.

Ideally, the best arrangements for newborns and toddlers is to spend short and regular time with the other parent. This allows for bonding and familiarity with the other parent, so the child is not distressed when spending time with the non-primary parent. As an example:

That the child lives with Mother/Father and spends time with the other parent as can be agreed and failing agreement as follows:
- Each Monday, Wednesday, and Saturday from 9:00 am to 11:00 am.

Obviously, you can adjust the times and days to suit the child and your schedule.

Around 3 to 4 years of age, children start to become more resilient and aware of their primary attachments. Particularly, when they have been afforded the opportunity to spend regular and meaningful time with the non-primary parent.

From infancy to schooling age, you should consider periodically increasing your child’s time with the other parent. When children start school (Prep) and have adjusted to the Monday to Friday routine, care arrangements can be more flexible, and children will likely adjust to extended periods of time in either parents’ home. For instance, if we build on the previous example:

Upon the child turning 1 year old:
- Each Monday and Wednesday from 9.00am to 1.00pm; and
- Each Saturday from 9:00 am to 5:00 pm.

Upon the child turning 18 months old:
- Each Monday and Wednesday from 9:00 am to 5:00 pm; and
- Each Saturday from 9:00 am to 5:00 pm.

Upon the child turning 2 years old:
- Each Monday and Wednesday from 9:00 am to 5:00 pm; and
- Each alternate weekend from 9.00am Saturday to 5:00 pm

Upon the child turning 2.5 years old:
- Each Monday from 9:00 am to 5:00 pm; and
- Each alternate weekend from 9:00 am Saturday to 5:00 pm

Upon the child turning 3 years old:
- Each Monday from 3:00pm to 6:00pm; and
- Each alternate weekend from 5:00 pm Friday to 5:00 pm Saturday

Upon the child turning 4 years old:
- Each Monday from 3:00 pm to 9.00am Tuesday; and
- Each alternate weekend from 5:00 pm Friday to 5:00 pm Saturday

Upon the child commencing Prep:
- Each alternate weekend from after-school Friday to before-school Monday; and
- Each alternate week from after-school Wednesday to before-school Thursday.

The above-mentioned schedule allows for the gradual progression of time in accordance with the child’s age and stage of development. The days and times for each stage leading up to the child commencing Prep can and should be altered to suit the child’s routine and both parent’s schedules.

All children are different and respond to life experiences in different ways. It can be incredibly traumatic for any child to experience the separation of their parents and if not handled in the appropriate way children will undoubtedly struggle with the separation of their parents. This daunting prospect coupled with the idea of being separated from one parent for a period of time can be incredibly difficult for a child to cope with. In these difficult times, it is hard to know what is right for your child particularly, for children young children from newborns to schooling age.

At Forge Legal, your child’s bests interests are our priority. We pledge to tell you the truth and to respect you and your situation. We prioritise your child’s needs within the context of the provisions in the Family Law Act. Our advice is designed to ensure the best possible outcome for your child. Our lawyers have extensive experience in children’s matters with particular emphasis on care arrangements for children at every stage in their young lives. We strive to achieve outcomes where every child has consistency and stability in their lives to ensure they have a bright future ahead.

WILLS & ESTATES

The essential guide to Wills in Queensland

This guide outlines all you need to know about Wills, probate and estate planning and preparing your Will.

There are many areas of law which most of us will only need to engage with very rare and in very specific sets of circumstances – for instance, where the negligence of another person causes an injury or where a marriage breaks down. Some of us are lucky enough to pass through life without ever having to engage with these areas of our legal system.

One area of law that each and every one of us must consider and engage with, however, is that of Wills and Estates – in fact, to do so is to ensure that our hard-earned assets, built up over the course of a lifetime are protected, and our loved ones are provided for.

No matter who you are, at what stage of life you find yourself, or how wealthy or otherwise you may be, if you live in Queensland, the following will apply:

You need a Will;
You need an Enduring Power of AttorneyEnduring Power of Attorney; and
At some stage, it is likely that you will act as executor for a deceased estate.

For this reason, we have prepared this five-part series on Wills and Estates, which encompasses this first article on Wills, and will be followed by articles on Enduring Powers of Attorney, Estate Administration, Probate and Family Provision Claims.

What is a Will?

In very basic terms, a Will is a legal document which allows the ‘Testator’ (you, the person making the Will) to set out how you wish your assets to be distributed upon your death. It is important to distinguish a Will from an Enduring Power of Attorney, which allows you to appoint somebody to make decisions on your behalf while you are still alive. The key point to remember is that a Will only comes into effect once you have passed away.

Do I need a Will?

In brief: yes. There is nothing as simple and effective as a Will when it comes to protecting your assets and your loved ones. As estate lawyers, we frequently come across situations where the absence of a Will results in the assets of a deceased being distributed in a radically different way than the deceased and their family would have contemplated. This can mean either loved ones going without and having to radically re-evaluate their lifestyles or the stress of a costly, bitter and lengthy family provision claim.

What happens to my assets if I die without a Will?

If you die in Queensland without having a valid Will in place, the way in which your assets will be distributed is determined by the Provisions of Intestacy. This refers to a ‘one-size-fits-all’ set of rules determined by the state government as to how the assets of a person who dies without a Will are to be divided up. As everyone’s personal and family circumstances are unique, by definition the way in which this ‘one-size-fits-all’ set of rules operates can often be very surprising to people who are unaware of it, and more sadly still, to their loved ones after they pass on.

For instance, most people instinctively believe that their surviving spouse would receive the entirety of their estate. Surprisingly, this is not the case. In fact, a surviving spouse may receive as little as $150,000 plus one-third of the remainder of the estate. In some circumstances, the intestacy provisions can see a deceased estate distributed to aunts and uncles (which, with respect to the many excellent aunts and uncles of Australia, is not where most people expect their estates to end up going). Worse still, there are situations where the entirety of a deceased estate may go to the state government, in precedence to, for instance, a dear friend or carer. We think it’s fair to say that this idea would be horrifying to a good proportion of Queenslanders! Add to this the fact that the state government could amend the existing intestacy provisions at any time by passage of legislation.

What is an executor and who should I appoint?

The first thing that most Wills specify is who is to act as executor (or executors) of the estate. An executor is the person who will apply for a grant of probate [hyperlink], ‘collect in’ the assets of the estate, pay out the estate’s liabilities and distribute the remainder to the beneficiaries in accordance with the Will. The executor may also need to maintain and invest estate assets so as to preserve their value, particularly in circumstances where the entitlement of a beneficiary does not vest until a certain age is attained. Given the nature of these responsibilities, it is imperative that only people who you trust implicitly are appointed as executors. These are usually close family members, but can also be professionals such as solicitors or accountants, who may charge a fee to be paid out of the estate.

You can appoint multiple persons to act jointly as executors (although we suggest no more than two). Importantly, we always suggest that an alternate executor is appointed for circumstances where your first choice predeceases you.

How can I divide my estate?

The first thing to consider when making your Will is whether you wish to give any specific items or sums or money to any specific people – for instance, an engagement ring to a granddaughter or $10,000 to a close friend. Not everyone chooses to make specific gifts under their Will, but they can be particularly relevant in circumstances where an item may have special sentimental value to a certain beneficiary.

The most important clause in any Will is the residuary clause. This is the clause which specifies how the residuary of estate (that is, everything that remains after the liabilities have been paid and any specific gifts have been made) is to be divided. This can incorporate a number of ‘tiers’, whereby the residuary can go to a certain person (for instance, a spouse) if that person survives, or otherwise to another person or class or persons (for instance, children).

At Forge Legal, we can draft residuary clauses such that the ongoing evolution of ‘classes’ of persons such as children or grandchildren is taken into account. That way, if a member of the class dies or a new member is born, there is no need to make a new Will.

We can also incorporate trust provisions into a Will, such that estate assets or funds can be controlled by a trustee and gradually distributed for the benefit of a beneficiary, or invested by a trustee until a beneficiary reaches a certain age.

What else can I specify in my Will?

Aside from their principal function of specifying how assets are to be distributed, Wills often contain statements as to the Testator’s intentions in relation to a number of other issues.

Often, parents will specify a person who they wish to act as guardian of their minor children upon the passing of themselves and the other parent.

Another common addition are statements of wishes as to funeral, burial or cremation arrangements. These could be as simple as a statement that such matters should be determined by the executor or go into detail about the conduct of the ceremony or the location of a memorial.

Whilst such statements are non-binding, they are a powerful expression of the Testator’s wishes and are often given serious weight and consideration.

How can I put a valid Will in place?

It is never too soon to make your Will. At Forge Legal, we make the process streamlined and simple, and we draft Wills in such a way that unnecessary amendments, later on, may be avoided.

The laws relating to the validity of Wills in Queensland are stringent and complex. There are countless issues which could render a Will invalid or a contest of a Will successful. The following are a non-exhaustive selection of examples:

Taking apart, hand-amending, marking, re-stapling or improperly binding the document;
Not complying properly with the requirements for the witnessing of the Will’s execution or using a beneficiary as a witness; and
Not having sufficient notes or documentation relating to the mental capacity of the Testator at the time the Will was made.

It is imperative that you have an experienced solicitor assist in making your Will. There are simply too many formal requirements (and too much at stake for your family) to risk doing it yourself.

At Forge Legal, when we draft a Will, our first priority is to ensure that you have a valid Will which will mitigate against any challenge on the grounds of mental incapacity, formal requirements not being met, or allegations of insufficient provision being made to certain relatives or dependants. Wills are a big part of what we do, so we can immediately identify any risks which might apply, and make sure those risks are mitigated against.

No matter what issue you might be facing, our friendly team is standing by to help you with any enquiries you might have. Get the outcome you deserve Our expert team can help

CRIMINAL LAW

What you need to know about criminal law

The consequences of a criminal charge can be severe and can have a significant impact on your life and the people around you.

At Forge Legal, we understand that being charged with a criminal offence is a daunting and confusing prospect. The consequences of a criminal charge can be severe and can have a significant impact on your life and the people around you. If you have been charged with a criminal offence, it is essential that you obtain legal advice that is tailored to your individual circumstances to ensure you get the outcome you deserve.

In Queensland, there are two different types of offences:

Simple or summary offences which can include traffic offences, trespass, minor assault and minor drug offences; and
Indictable offences which can include murder, manslaughter and serious drug offences, armed robbery and dangerous driving causing death.

Ordinarily, a person is charged with a criminal offence when they are arrested or served by police with a complaint and summons or notice to appear.

A person who has been arrested will be formally charged when they have been taken to the nearest watch-house and processed. Generally, a person will be processed by way of a photograph, fingerprints and possibly a DNA swab. The watch-house officer will then determine whether a person is eligible for bail. This is dependent upon that person’s criminal and bail history (if any) and the seriousness of the offence that person has been charged with. Those who are not granted bail by the watch-house officer are remanded until they appear in court – usually the next day, if not that same day.

A complaint and summons is a charge which is in writing and has been sworn by a suitably qualified witness such as a justice of the peace prior to being served upon you. Once you have been served, you will need to appear in court at a later date, which should be specified in your summons. You must ensure that you and/or your lawyer are present in court on the date listed in your summons.

A notice to appear is relatively similar to a summons with the exception that a notice to appear only provides a general description of the offence with which you have been charged. This document does not have to be witnessed or signed and can be issued by police at the time of the offence or sent by mail to you at a later date. A person who has been served with a notice to appear is directed to appear in court at a later date, which is listed on the notice to appear. Again, it is incredibly important that you and/or your lawyer appear in court on the date listed on your notice to appear.

It is important to note that if you fail to appear on the first court date, you may be charged with a further offence of “failing to appear” unless you have a reasonable excuse. If you fail to appear, a warrant may issue for your arrest.

Generally, at your first court date, you or your lawyer may do one of three things:

Ask for an adjournment of your matter to allow you to obtain preliminary or further legal advice. This is at the discretion of the court and may or may not be granted.
Enter a plea of guilty. Prior to considering entering a plea of guilty, you must obtain independent legal advice about the potential consequences to you should you enter said plea.
Enter a plea of not guilty. If you enter a plea of not guilty, you will be given another date to return to court to commence the trial process.

Your first court date will also allow you to apply for bail (if necessary). Bail is a term used to describe a written promise you make to the court after you have been charged with an offence. If a person is granted bail, a judge can enforce certain conditions on that person’s bail, including but not limited to:

Enforcing living arrangements;
Ordering no contact with a person or persons; and
Reporting to a police station or bail officer on a regular basis.

The court will ordinarily refuse bail in circumstances where you have a prior record of breaching bail conditions if the court considers that you may commit further offences if released, or for another legal reason. If you have not been granted bail, then you will be kept in police custody until your next court date.

After having been charged with an offence, you are at liberty to request a charge sheet from the police which sets out the complete details of your charge. You are also at liberty to view the police prosecution file which should include documents such as witness statements, your criminal history (if any) and a QP9. For those who are unfamiliar with the term QP9, this stands for Queensland Police Form 9, which is a document that should include your criminal history, a summary of the offence and the facts alleged by police, as well as the relevant laws under which you have been charged.

If you have entered a plea of not guilty, then the police have five weeks to provide you with a full brief of evidence which they intend to rely upon at trial. This five-week period commences from the date your matter has been listed for trial, usually the second or third court date (otherwise known as a summary call over).

If you are charged with a criminal offence, you must obtain independent legal advice about the allegations against you and understand the potential consequences to you and your loved ones. It is incredibly helpful when a client comes prepared with their charge sheet, QP9 and any other documents relating to their charge. However, we understand that collating such information can be a complicated process, so we can certainly undertake this task on your behalf.

The Magistrates Court deals with the majority of criminal offences such as minor assaults, traffic offences, shoplifting and disorderly behaviour. The District and Supreme Courts hear more serious offences such as murder, armed robbery and serious drug offences. There are some charges in which you can select which court you wish your matter to be heard in, however, it is usually a decision for the prosecutor or judge as to in which court your matter will be heard. Our team of criminal lawyers can represent your interests in the Magistrates Court, District and Supreme Court.

We can represent your interests in a variety of criminal matters such as:

Minor traffic offences
Assault
Theft
Fraud
Drug offences
Breach of Domestic Violence Protection Orders

Depending on the complexity of your criminal law matter, there can be a number of appearances in court prior to your matter being finalised, whether it is finalised after a trial or after having entered a plea. Where a person is legally represented, it is not always a requirement that they appear in court for every attendance, although it is always preferred that you are present in court for every appearance before a judge. Our criminal lawyers will advise you when it is necessary for you to be present in court as there can be serious consequences should you fail to appear without reasonable excuse.

Our criminal law experts will put your mind at ease with in-depth legal advice tailored to your individual circumstances. We will walk you through the process from arrest all the way to trial and sentencing, if and when necessary. We also assist with bail applications and appeals to the District and Supreme Courts.

The legal advice you receive during your criminal matter can have longstanding effects on your life and those of your loved ones. We will endeavour to keep you informed about your matter through every step in the process and give you realistic and thorough advice at each critical stage. We provide our clients with quality advice and ensure you have reasonable expectations with respect to your desired outcome.

We are knowledgeable and experienced lawyers who prioritise the needs of our clients in their most difficult times. With decades of knowledge and experience amongst our lawyers, our goal is to cater to your individual needs and provide you with the assurance you need to navigate through your criminal matter. We will always have an experienced lawyer available to you in your hour of need.

FAMILY LAW

How to remove a Domestic Violence Order in Queensland

While it is possible to remove or vary a DVO this is very much dependent on a number of factors.

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A DVO or AVO is a civil Order between people to prevent violence in domestic circumstances. If you are a respondent to a DVO you are required to be of good behavior and not commit domestic violence against the aggrieved and any named protected persons and comply with the conditions of the Order or risk serious criminal penalties if breached. While it is possible to remove or vary a DVO this is very much dependent on a number of factors.

Firstly, are you the respondent or the aggrieved?

How to get a temporary protection order or permanent DVO removed

If you are the respondent and you are subject to a temporary DVO, your only option to prevent a permanent Order being made is to contest the application at a trial. This can be an expensive and risky exercise where the consequences of failure are that there are findings of fact against you that you committed an act or acts of domestic violence against the aggrieved.

If you are the respondent subject to a permanent DVO, then you must apply to the Magistrates Court to vary the Order. This is completely at the discretion of the Magistrate who ultimately decides whether the DVO is necessary and desirable. It is also important to note that a Magistrate does not have the authority to remove or revoke a DVO once it is permanent, what a Magistrate can do is vary the term/duration of the Order so that it ends immediately or within a certain period of time.

Can a DVO be withdrawn?

If you are the aggrieved and you have made the application privately, as in without the assistance of Police, then you can withdraw your application at any stage in the proceedings. If a permanent Order has been made that you want removed, then you have to apply to the Magistrates Court to vary the Order, so that it ends immediately. Again, this is completely up to the Magistrate as to whether or not they will accept your application. If a temporary Order has been made and no permanent order exists, then you can apply to withdraw your application and remove the temporary DVO.

To apply to have a DVO removed or withdraw your application, you have to contact the Magistrates Court registry where you filed your application for a DVO and file an application to withdraw your application and remove any existing Order.

If you are the aggrieved and the application has been made by the Police on your behalf, then it is at the discretion of the Police Prosecutor whether or not they will withdraw their application. Rarely do Police withdraw an application however, more often than not, a Police Prosecutor is willing to negotiate the terms of a DVO.

If you want to change the terms of the Order, then the process is such that you have to file an application to vary the DVO in the Magistrates Court. In your application you have to clearly state what you want changed or removed from the DVO and the reasons why.

Whichever pathway is relevant to you, it is important to note that the Magistrates Court has authority to approve or deny any application, so there is rarely any certainty in terms of the outcome. Unless both parties reach an agreement that the Magistrate is satisfied with, then usually the Court prefers to err on the side of caution.

The risks associated with a DVO if breached are criminal consequences which if charged and found guilty result is significant penalties depending on the seriousness of the breach. A criminal record will also result which will likely impact a person’s ability to gain or maintain employment and affect the offender’s day to day life generally. For these reasons, it is critical that you seek independent legal advice if you are served with an application for a DVO.

Support When You Need It

Get the best outcome for your family with a team that will make it as easy as possible while dealing with the family court. We know these times can be stressful and we are here to help.

PROPERTY LAW

The body corporate explained

All you need to know about body corporate when buying a Brisbane apartment or unit.

In our many years in acting in residential conveyances in Brisbane, one of the things that we have found buyers are often mystified by and understand poorly, if at all, is the body corporate for apartment or unit developments. This is often to the detriment of buyers who may enter into a contract to purchase a unit without any idea as to what to look for in an apartment development and how such schemes operate.

Will my new property have a body corporate?

To begin with the basics, there are two major classes of residential properties in Queensland — standalone dwellings and units within a Community Titles Scheme.

For a standalone dwelling (typically a freestanding house), the owner has title to the entire residential lot (the parcel of land including all buildings and structures thereon) and there are no shared areas.

Residential dwellings that do not fit the above description are typically residential lots within a Community Titles Scheme. Such dwellings could be townhouses, units in a small six-pack development or apartments in a high-rise complex with hundreds of apartments. The way a Community Titles Scheme works is that there will be separate lots (typically the internal area of the unit itself). These belong to individual owners, plus a common area (comprising everything besides the separate lots, which typically includes gardens, lifts, pools, foyers, corridors and the exterior of the building). Together, all of the individual lots and the common property form the Community Titles Scheme.

What is a body corporate?

The common property of a Community Titles Scheme is owned by the body corporate, which is a corporate entity similar to a company. Just like a company, which is owned by its individual shareholders, the owners of the individual lots within the Community Titles Scheme all own shares in the body corporate. That is to say, the body corporate is comprised by the individual lot owners.

This is complicated by the fact that each lot owner has a differing share in the body corporate. This is called the interest entitlement. In some Community Titles Schemes, particularly older developments such as ‘six packs’, every lot owner has the same interest in the body corporate, regardless of the size of their individual unit. A common example is a six-pack development where each of the unit owners has a 1/6^th interest in the body corporate. This means that each lot owner has an interest in 1/6^th of the development’s common property.

For most larger developments, the allocation of interest entitlements is not equal. They may be influenced by factors such as the size of the unit or its position within the development. Therefore in a tower of 150 apartments, the owner of the four bedroom penthouse on the top floor may own a 2/150^th interest in the body corporate. The owner of a one-bedroom apartment on the ground floor may only have a 1/300^th interest.

The interest entitlement becomes very relevant in a situation where the lot owners vote to end the Community Titles Scheme and sell the land to a developer to redevelop, a situation which is becoming increasingly common with six pack-type developments. This means that upon the sale of the block of units, along with the value of their individual unit, each unit owner will be entitled to 1/6 of the value of the common property.

The flip side of this equation is contribution entitlements. This is the proportion of the total running costs of the body corporate which must be paid by each individual unit owner. To use the example of the 150 unit tower discussed above, where the body corporate may have expenses of at least $2 million per year, the owner of the four-bedroom penthouse will likely have to pay substantially more than the owner of the one-bedroom ground floor apartment.

Just like a company, all unit owners will vote on more important body corporate decisions, such as changing bylaws or major expenditures during annual meetings. The day to day running of most body corporates is undertaken by a small committee, which will deal with day-to-day matters. The committee are of course elected by the unit owners at large. The body corporate may also appoint a body corporate management company to deal with administrative matters such as the counting of votes and keeping of minutes.

Am I paying too much in body corporate fees? What are average body corporate fees for Brisbane?

As touched on above, all body corporates have expenses. For a six-pack type development, this may entail insurances, fire and safety inspections and compliance, mowing, gardening, painting of the common areas, and day-to-day maintenance. For a larger more luxurious development, they may include a far wider range of expenses including lift maintenance, pool maintenance, or an on-site manager. In short, the expenses of the body corporate are those which relate to the common property and the building itself (excluding the interiors of the individual lots).

Just as the individual unit owners each have shares in the common property, they also pay their share of the body corporate’s expenses. These payments are called body corporate levies or body corporate fees. They are typically paid quarterly and a ‘discount’ will typically apply where they are paid on time. We are often asked what the average body corporate levies are in Brisbane.

The simple answer is that body corporate levies vary widely in accordance with the nature of the development, its facilities and how well the scheme is maintained. At the time of writing in 2019, it is common for older units in a brick six-pack scheme to have levies as low as $4,000 per year in Brisbane given the relative lack of facilities. For average larger and newer developments with lifts to maintain, body corporate levies of at least $6,000 per year for a two bedroom or $8,000–$11,000 for a three bedroom. For a luxurious or river-adjacent high-rise development in the inner city which may have an on-site manager, opulent common areas and upwards of four lifts to maintain, levies may be well into the $8,000–$12,000 range for a two bedroom and $12,000–$20,000 for a three or four bedroom. In luxurious river-adjacent buildings in suburbs like Kangaroo Point, South Bank, the Brisbane CBD or the Gold Coast, body corporate levies for the largest apartments may be upwards of $25,000 per year.

The levies advertised for newly-constructed developments may be misleading, as the levies are often grossly underestimated by the developer. When the unit owners realise the true costs of running the Community Titles Scheme within the first few years after settlement, the levies will often increase substantially.

Whether the levies are worth paying is an equation which will depend upon the needs of the purchaser. For instance, a value minded investor who has no intention to live in the property may be suited to a simple six pack-type development, noting that the rent or capital gain attainable in such developments may be correspondingly lower and the common areas may be unimpressive. For an owner-occupier who wants immaculately maintained common areas, short wait times for lifts and facilities such as a pool or on-site manager, paying higher levies may equally make sense.

When considering the amount of body corporate levies when buying a unit, it may be useful to compare the levies with the amount it would cost to pay building insurance for and maintain a freestanding house. In a community titles scheme, the body corporate pays for building insurance, mowing and garden maintenance, and for the painting and maintenance of the exterior of the building. When considering the costs that may be incurred in owning a freestanding home in the same location as the apartment development, such as home insurance, pest control, the work and expense involved in mowing and maintaining a pool or garden, and the large periodic expenses of exterior painting and roof replacement, which over a ten-year period may easily average well in excess of $10,000 per annum, the cost of body corporate levies is often put into perspective.

What to look for when buying a Brisbane unit – Prevent body corporate disputes QLD

One thing which buyers often fail to consider is the state of harmony within the body corporate. As touched on above, the unit owners within a Community Titles Scheme vote on numerous motions, including the election of committee members. The word ‘politics’ should spring to mind here. Whilst many Community Titles Schemes are impeccably managed with a good state of harmony between residents, there are others in which the unit owners may be divided into rival ‘camps’, divided by personal enmity or differences of opinion over the running of the scheme, which may result in the delaying of necessary maintenance or unnecessary legal expenses being incurred by the body corporate. We are able to conduct searches of body corporate records and decisions of the body corporate adjudicator for prospective buyers to ascertain the state of harmony within a particular scheme.

In inner city areas, the body corporates of many larger developments have retained large and well-known on-site management companies from the hotel industry who run short-term letting businesses on behalf of the unit owners. These developments will usually be advertised online as if they were hotels, and travellers may book accommodation within the developments using standard online hotel booking websites. The units in these developments are usually owned by investors and may be less attractive to owner occupiers. Many owner-occupiers looking to purchase an apartment in an inner-city location may wish to ensure that the development is managed for the benefit of owners and long-term tenants and is not advertised as a hotel.

High-rise developments constructed during the last several years may also have a low ratio of lifts to apartments compared to older high-rise developments. While it was previously common for a high-rise (that is, 20 levels or higher) development to contain 4–6 lifts, some newer developments of this scale may contain only 2 lifts – this could result in extremely long wait times on weekdays during the morning and afternoon peaks.

Body corporate by laws

As with a country, state or company, Community Titles Schemes have a ‘founding document’, similar to a constitution, which sets out the fundamental rules for how the scheme is to operate. In Queensland, this document is called the Community Management Statement. It sets out the interest and contribution entitlements, as well as the bylaws of the scheme.

It is important that prospective owners read the bylaws in full before committing to the purchase of a unit, as they may contain important provisions such as restrictions on pets or requirements for the owner of a given unit to maintain certain courtyard or external areas. We can perform a search to obtain a copy of the community management statement so that prospective purchasers are aware of any bylaws to which they will become bound.

As with a law passed by a state of federal parliament in Australia, certain bylaws may be ‘struck down’ by the courts (or in this instance, the body corporate adjudicator) in the event that they are deemed to be unenforceable or unreasonable. With appropriate legal advice, an individual unit owner may contest a bylaw that they deem to be unfair by making an application to the adjudicator.

Author: admin@forge

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