QLD: Q&A If our strata manager refuses to sign the Form 33, who can sign it?

This article discusses who is authorised to complete and sign Form 33 in QLD when a strata manager refuses to do so.

Question: If our strata manager refuses to sign a Form 33, who is responsible for completing and signing the form?

We are selling our apartment in a small block of six and have completed the Form 33 using information sourced from the strata manager’s records. However, the strata manager has refused to sign the form. The guide states that the form must be signed by someone authorised by the body corporate, with the committee voting to decide who that is. If the strata manager refuses to sign, who is responsible for completing and signing the form?

Answer: The body corporate certificate should actually be completed by the body corporate (or someone authorised on its behalf).

Whilst a seller must provide the relevant Form 2 (disclosure statement) under the Property Law Act 2023, containing all of the ‘prescribed certificates’ (one of which is the Body corporate certificate (e.g. BCCM Form 33)), the body corporate certificate should actually be completed by the body corporate (or someone authorised on its behalf), not the seller, seller’s agent, or anybody else not acting on behalf of the body corporate.

A seller (or other interested person) simply has to make the request for the certificate, and the body corporate must then prepare and provide the completed certificate.

It is understandable that the body corporate (or its authorised agents, such as committee members and/or the body corporate manager) would not want to sign a certificate completed by someone else.

Nonetheless, the body corporate has a statutory obligation to provide a completed certificate within the required timeframe set out in the Body Corporate and Community Management Act 1997 (being five business days after the request accompanied by the prescribed fee).

It is the body corporate that has the obligation to produce the certificate, and any signatory is executing the form on behalf of the body corporate (and so should be authorised to do so – e.g. by resolution of the committee or body corporate at a general meeting). Usually, the person authorised would be a committee member or the body corporate manager.

Nonetheless, it should also be understood that it is not incumbent for a body corporate manager to execute a certificate if they do not agree and/or it is not part of their contracted duties under their administration agreement with the body corporate. That is an internal matter for the body corporate and body corporate manager to resolve, and, ultimately, it does not absolve the body corporate from their obligation to produce the certificate.

It should also be noted, and sellers should be aware, that a Body corporate certificate may not be required for the purposes of the sale contract where particular requirements are met – including if the seller is advised by the body corporate that it can’t produce the certificate because, for example, the records are missing, destroyed or in disarray. Clearly, if the body corporate refuses to produce a certificate (irrespective of the reason), that is sufficient enough a reason as to why the seller can’t produce it to the buyer as part of the Form 2 disclosure statement. In that case, the seller needs to produce to the buyer an ‘explanatory statement’ stating that a Body corporate certificate is not attached and the reason the seller was unable to obtain one.

This summary should not be taken as legal advice or relied upon, and any person selling their lot in a community titles scheme should properly consult their solicitors and other agents for advice specific to their circumstances.

Jarad Maher
Grace Lawyers
E: jarad.maher@gracelawyers.com.au

This post appears in Strata News #769.

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Read next:

• QLD: Q&A Is the Form 33 preparation fee a body corporate expense or a buyer cost?
• QLD: Guide to completing a body corporate certificate (BCCM form 33)
• QLD: Q&A Tenancy Agreements & the Body Corporate

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