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REIQ Journal : March 2010
have a good system in place for receiving any requests or complaints made by tenants or visitors to the property. All complaints and requests for repair or maintenance work (and discussions about the same) should be recorded in writing and retained on le. 3. It is imperative lessors are promptly advised of all complaints, and repairs or maintenance issues in writing. If necessary, property managers should promptly seek instructions for rectifying such issues -- this too should be in writing and retained on le. Similarly, all instructions received from lessors should be recorded in writing and retained on le. 4. A follow-up system should be implemented so property managers are reminded to chase lessors for any outstanding instructions to remedy any maintenance or repair issues. All discussions with lessors should be recorded contemporaneously and retained on le. 5. It is also important all contractors be engaged in writing (using the Contractors Appointment Form available on Realworks) and a copy of the completed form be retained on le. Similarly, contractors' licence and insurance details ought to be recorded in writing and updated annually. 6. After a contractor has completed repair or maintenance work at a property, it is important that property managers follow-up with tenants to ensure the work has been completed satisfactorily. Again, comprehensive and contemporaneous le notes should be made of tenants' responses. In some circumstances, it may be appropriate for property managers to inspect the work themselves and generate a written report for the le. 7. Regular inspections are another important aspect of property management. As with the Entry Condition Report, comprehensive written reports should be retained on le, identifying any actual or potential repair or maintenance issues. Again, lessors should be promptly advised of these issues and instructions should be sought in writing to have them remedied. This should occur irrespective of the likelihood of the lessor authorising the work as this may create some distance for the property manager from exposure to liability. Where a particular complaint or request for maintenance or repair work is absent from an otherwise comprehensive le, the Courts have been willing to draw the inference that no such complaint or request was actually made. This was exempli ed in the matter of McDonnell v Green & Ray White Mooloolaba  QDC 300, where a visitor to a rental property was injured on the property's driveway. Although the tenant alleged that a number of complaints regarding the driveway had gone unanswered, the Court drew the inference that because of the comprehensive nature of the property manager's le, and the e cient manner in which they dealt with all other maintenance and repair issues reported to them, it was inconceivable that the tenant had made any complaint about the driveway to the property manager. The claim was dismissed and we were able to recover the costs of defending the claim from the property manager's insurer. In another matter involving a rental property, Rogers v Body Corporate for Waterloo Crest CTS 25235 & Anor  QSC 369, the property manager's le was again comprehensively maintained but held no record of the tenant's alleged complaints regarding a timer light on a stairwell at the property. The tenant had fallen down the stairs after the timer light failed to stay lit. The Court found that neither the body corporate nor the property manager was liable for the incident because it inferred from the absence of any reference to the issue in the otherwise detailed property management le that it was highly unlikely any complaint had in fact been made. Where a particular complaint or request for maintenance or repair work is absent from an otherwise comprehensive le, the Courts have been willing to draw the inference that no such complaint or request was actually made. Michael Gapes, Partner, Carter Newell Lawyers REIQ Journal March 2010 31 LEGAL ISSUES