We have a caretaking contract with an Owners Corporation in a Strata Complex. With regards XXXXX XXXXX duties it states - the caretaker must ensure that the common property is maintained in good order on condition. This means doing the following : repairs and maintenance except those requiring the services of a skilled tradesman. Can we invoice the Owners Corporation for our time involved in carrying out the repairs and maintenance for those duties not requiring a tradesperson? Eg. even just to change a light globe and clean the fitting takes time as it requires long ladders etc. Also it states the caretaker must keep the Common Property clean and tidy. How do we assess clean and tidy degree? frequency ? etc . Should it be specified or can it be left to relative common sense?
I have spoken with the Office of Fair Trading and they say that our Caretaking Contract should be interpreted by lawyer expert in contract law
Hello and thank you for your question.
Where subjective terms are used, like clean and tidy the law interprets them to be what a 'reasonable' person thinks them to mean.
In practice this sometimes leads to disputes as to what the parties to a contract actually mean, and if litigation ensues the parties cannot always be sure whether the will decide in their favour.
For this reason, rather than simply saying the caretaker will maintain the property and keep it clean and tidy, a contract should specify how often the property will be swept, mowed, hosed, etc and whether the caretaker will charge extra for particular irregular items such as replacing light bulbs, removing fallen branches, etc. This way the contract has a solid basis in defined tasks and provided the tasks are done there is less room for dispute.
If your question relates to the drafting of a contract, then you should define the proposed tasks as described above.
If there is a current dispute, or you are the caretaker hoping to claim for specific services, please elaborate on exactly what is in issue?
I trust the above assists your understanding.
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It is an existing contract and our Executive committee are not prepared to pay the invoices I present. He wants me to list all my duties and to specify frequency eg. mop floors 3 times a week. This was not in our contract and if we list specific duties and don;t do them then we may be in breach of contract. With regards XXXXX XXXXX and maintenance they expect us to replace flyscreens on windows (they will pay for materials), mow the lawn, replace broken fittings that take time. More repairs are necessary as the complex is getting older and also the tenants break things that we have to then fix or replace. For example a plant was trampled and needed to be replaced but it is our time to purchase and plant etc. Tiles are chipped and take our time and expertise to repair. Should we get a new contract made up that lists everything explicitly? What if no new contract is made up then how do we stand?
If your contract simply says "maintain the contract in good order and condition" then I would not normally have thought this would include an obligation to repair the property.
However, if the contract does specify that this includes "repairs and maintenance except those requiring the services of a skilled tradesman" as you suggest, then arguably it does include the cost of such repairs as replacing torn fly screens and light bulbs. This would mean that unless the contract made some provision for payment to cover extra labour costs for repair and maintenance tasks, then you would be obliged to do such work without further payment.
If you are bound to the contract for some extended period, then you are likely stuck with these terms, otherwise (and certainly at the end of your contract) you should certainly renegotiate by setting out a schedule of what you agree is and is not included in your duties as a caretaker.
If you renegotiate then I suggest you identify the repair and building maintenance tasks you are prepared to do, and perhaps include a clause which states that additional labour charges at $X rate will apply to repair work which takes longer than Y time. You should include a clause which entitles you to reimbursement for the cost of replacement parts, equipment or fittings required to conduct such repairs.
As to your specific question regarding the broken plant, strictly speaking, it should not be necessary to replace the plant except to the extent required to to keep the premises "maintained in good order and condition."
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Dip Law LPAB - Sydney based lawyer
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