Before a strata titled building can be lawfully occupied in Queensland, the Body Corporate must enter into an agreement with Queensland Fire and Rescue Services (“QFRS”) for the installation and monitoring of fire safety/detection equipment.

 

When the fire alarm goes off, in most cases (thankfully) it is either a false alarm or something less than a fire which endangers the lives and property of the building occupants / owners. QFRS’s response to the alarm usually requires attendance on site and charging a call out fee if the call out is a false alarm.

 

Can a Body Corporate pass on the associated costs to an owner / occupier who was responsible for the false alarm?

 

When will the QFRS issue a call out fee?

 

The general principal in relation to recoupment of the costs of a QFRS call out is that the person for whose benefit a service is provided is liable. However, the owner of a property is not liable for any charge for a service of attending to a fire in or on that property or endangering that property, other than an unwanted alarm charge.

 

An unwanted alarm charge is the activation of a fire alarm system where, after investigation by QFRS, the QFRS deems the condition or situation would not have resulted in any danger to the premises and/or occupants from fire.

 

Accordingly the following alarm situations do not normally result in call out fees:

 

< Fires detected by an operating fire alarm system;

< Operation of the alarm system caused by external factors i.e. smoke/heat from another source/incident that is external to the subject premises, property boundary and outside the owner/occupiers control; and

< Alarms generated by extreme weather conditions.

So what circumstances would give rise to call out fees?  In Dockside Hotel [2006] QBCCMCmr 291  an adjudicator detailed some examples:

 

< Steam from showers etc;

< Alarm system malfunction such as a fault in the wiring, alarm panel or inadequate maintenance;

< Normal weather conditions such as leaving the doors/windows open;

< Failure to notify of a test;

< Poor building maintenance such as dust, cobwebs and insects;

< Simulated fire conditions such as candles, incense, sparklers, cigarettes, smoke from cooking or smoke machine;

< Malicious activation of Manual Call Points.

For further information regarding unwanted alarms please refer to the relevant QFRS policy at  http://www.fire.qld.gov.au/buildingsafety/unwanted/default.asp

 

Passing on call out fees

 

As can be seen from the above examples there are certain instances where it would be reasonable to say an owner / occupier is the cause of QFRS’s attendance (i.e. simulated fire conditions). In those cases it seems reasonable that the offending owner should bear the costs. Can this be done under a by-law?

 

It is common place to see a By-Law which states:

 

A proprietor shall pay on demand any Queensland Fire Services charges for false alarm call outs occasioned by actions of the lot occupier.

 

One issue with such a by-law is that it may be contrary to Section 180(6) of the Body Corporate and Community Management Act 1997 (“BCCMA”).  That section prohibits any by-law, other than an exclusive use by-law, from imposing a monetary obligation. Rather than rely on such a by-law, it may be best to recover call out fees using another method. 

 

Passing on the call out fees without a by-law

 

There is support for the proposition that the Body Corporate is able to pass on call out fees under Section 167 of the Accommodation Module or Section 169 of the Standard Module.  Those provisions permit the Body Corporate to engage a person to supply services for owners or occupiers of lots and subsequently recover the costs of operating and maintaining or replacing any equipment related to the service from the users of the service. 

 

It was the adjudicator’s view in Dockside that a Body Corporate is demonstrating good faith in accepting call out charges where the cause is not identified by the QFRS. Acceptance of these charges demonstrates the Body Corporate’s commitment to both the maintenance of the system and their faith in the soundness of the equipment. To deny the Body Corporate the ability to pass on charges where the cause is known, also denies the Body Corporate the ability to require the commitment of others in minimising unnecessary call outs. The sharing of these charges motivates the Body Corporate to meet its obligations and also motivates owners and occupiers to meet their responsibilities in relation to unnecessary call outs.

 

Further in Dockside it was suggested that if a lot in a scheme is tenanted and the cause of a call out is determined to have been activity within the tenanted lot, the Body Corporate should still recover the call out fee from the owner of that lot. It is then at the owner’s option to pursue the tenant to recover the funds.

 

Best practice

 

Accordingly there is authority for the proposition that the Body Corporate has a statutory right to recover a QFRS call out fee from owners  irrespective of whether there is a by-law in place or not. A by-law might therefore not strictly be necessary to enable recovery but it may well assist.  Particularly, buyers of lots in Community Title Schemes must now be provided with a copy of the recorded community management statement (CMS) for the Scheme when they receive their disclosure statement from the seller.  This means that buyers are likely to read the by-laws included in the CMS.  To have the best of both worlds then Bodies Corporate should consider inserting a new by-law, or redrafting their existing by-law, to both put lot owners / occupiers on notice that they are responsible for the QFRS fees and to provide additional assistance to the Body Corporate with the process of recovery.

 

It is our view that the most appropriate mechanism for recovery of call out fees is through the Body Corporate paying the QFRS invoice and then raising and issuing its own invoice, with a copy of the QFRS invoice, to the relevant lot owner.

 

 

Article by Michael Kleinschmidt - Senior Associate, Property Services

and Sarmein Jamieson - Solicitor, Corporate & Business Services.

 

 

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Buying a business?  Talk to one of our professionals about your due diligence 1300 369 581 or tonyn@macgillivrays.com.au.

 

 

PLEASE NOTE:  This article is not legal advice and our comments are of a general nature only.  This document is not to be relied on as substitution for proper detailed legal advice. 

 

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