These articles about the validity of strata title by laws QLD have been supplied by Frank Higginson and Todd Garsden of Hynes Legal.
Question: The Committee in QLD is currently reviewing our twenty year old strata title by-laws in an attempt to address some of the matters which are becoming problematic – building security and community power.
We live in a block of fifteen units on the Sunshine Coast which has a mix of holiday rentals, permanent rentals, owner-occupied, and lockups.
The Body Corporate Committee in QLD is currently reviewing the strata title by-laws, which have not been updated for approximately twenty years, in an attempt to address some of the matters which are becoming problematic.
Apart from the ever-present dramas of Parking, and Pets, we are hoping to address the issues of Building Security, and the use of Community Power.
We have a “policy” in place that requires occupiers to keep garage and (building) entry doors locked, and another which prohibits the use of high load appliances (fridges, freezers, clothes dryers etc) in garages where power points are on the “community” electricity circuit.
The committee is anxious to have these items covered in the new strata title by-laws, and we are wondering if there other bodies corporate that have done so successfully?
Answer: The strata title by-law about building security is capable of being considered valid – if it is consistent with the requirements where owners and occupiers must not create a hazard.
To me, the by-law concerning community power is not a strata title by-law issue but one that falls within the body corporate providing a service to owners (electricity supply). To do that there needs to be a service agreement in place and there is a myriad of rules regulating that supply of electricity.
I think the strata title by-law about building security is capable of being considered valid – if it is consistent with the requirements of section 167 of the Act where owners and occupiers must not create a hazard. If leaving garage doors unlocked creates a hazard then it probably passes the test, but if not, the body corporate might be going too far with it.
But by putting it in the by-laws the committee needs to consider the practical implications of enforcing it – is the committee going to go around checking that doors are locked? If not, there is probably no utility in having the by-law.
I think the better way of managing this would be for owners to use the power connected through their lot or for the usage to be specifically metered.
This post appears in Strata News #221.
Question: One of our Strata Title By-Laws seems unreasonable. Although we are allowed pets, the pet must not be walked or carried through the foyer. The alternative route is not suitable for me.
I live in a strata unit in Queensland which allows pets but one bylaw says no pet is able to walk or be carried through the foyer outside but must be taken down through the car park up the steps or winding busy driveway.
I have difficulty with steps etc because of knee problems. What is the legal position on this?
Answer: In Queensland, the starting point is that a by-law must not be oppressive or unreasonable having regard to the interests of all owners and occupiers of lots included in the scheme.
In Queensland, the starting point is that a by-law must not be oppressive or unreasonable having regard to the interests of all owners and occupiers of lots included in the scheme.
To determine whether or not a by-law that restricts pets from the foyer is invalid requires an understanding of the body corporate’s reasons for including that by-law. If you are able to provide evidence that the by-law causes you detriment and unnecessary hardship and there is no evidence to demonstrate that any detriment would be caused to owners/occupiers if your pet were to enter the foyer, it is quite possible that the by-law would be deemed invalid, but it all depends on the specific circumstances.
Usually, these types of prohibition are not lawful.
This post appears in Strata News #208.
The Five Most Common Invalid Strata Title By Laws QLD
January 2017 We see thousands of by-laws every year. Our personal favourite is a by-law requiring the body corporate to keep a rope in the pool so that if a koala falls in, the koala can climb back out. We don’t see how that by-law can ever be enforced, especially by the koala it is there to protect!
On a more practical note, the examples below are some of the most common by-laws we see that are unnecessary or unlawful – along these lines:-
Invalid Strata Title By Laws QLD
|An Occupier must not create noise at any time likely to interfere with the peaceful enjoyment of a person lawfully on another Lot or the Common Property.|
Occupiers must take all reasonable steps to ensure that their Invitees abide by the by-laws and do not behave in a manner likely to interfere with the peaceful enjoyment of a person lawfully on another Lot or the Common Property.
|The legislative standard is not ‘likely to interfere’ – the standard is not to ‘unreasonably interfere.’|
All noise will be likely to interfere with someone else’s use and enjoyment of their lot – such as hearing a television during the middle of the day or the odd door slamming.
|An Owner or Occupier may not keep an animal in their lot or the Common Property.||By-laws that are prohibitory in nature are unlawful. An absolute ban on anything is simply not enforceable. Any building with this by-law has no rights with respect to the keeping of pets, or at best, it is read down to allowing pets with committee consent.|
A conditional by-law is acceptable, but the question is then the reasonableness of the conditions.
|The Committee may require a bond of up to $300 from an Owner or Occupier before they move into or out of a Lot.||A by-law cannot impose a monetary penalty or payment. That is what this is. If damage is done to common property during a move the remedy for that is action afterwards. A body corporate cannot impose a security requirement for any potential damage.|
|The committee may set policies or procedures from time to time about the governance of the scheme.||This is a house rule and it is completely unlawful.|
Any rule that is to be enforceable must go through the by-law approval process set out in the legislation. The committee cannot be given powers to circumvent the legislation.
|Where the Committee or the Body Corporate spend money to repair damage caused by a breach of the Act or of these by-laws by any Occupier or Invitee then the Body Corporate is entitled to recover the amount spent as a debt in any court action from the Owner of the Lot from which that Occupier or Invitee came.||A by-law cannot impose a monetary penalty or payment. That is what this is and it is invalid.|
The body corporate may have rights under the Act to recover costs, but cannot do so through the by-laws.
If your scheme has any of these by-laws, then perhaps you should consider having them reviewed. Click here to submit your CMS so we can provide a free review for any obvious issues and give you a proposal to have your by-laws updated.
This post appears in Strata News #125.
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