QLD: Oppressive or Unreasonable Strata Bylaws

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These articles about the reasonableness of QLD strata bylaws have been supplied by Chris Irons and Frank Higginson, Hynes Legal.

Jump directly to the QUESTION you are after:

• QUESTION: On my secluded rooftop deck I have a fire pit. A lot owner has put forward a motion to ban all forms of naked flames. Would a bylaw banning naked flames be lawful, especially when this is an exclusive use area?
• QUESTION: What rights does the Committee have to stop residents from using a facility if they are not obeying the By-Laws to do with conduct?
• QUESTION: Can a Body corporate general motion ban an owner or occupier from moving into or out of their apartment on a set day of the week, or is this unreasonable?
• QUESTION: We are having a running battle with our Body Corporate Committee about pet ownership. Is it unreasonable to have a ban on dogs over 10 kg at our scheme?
• QUESTION: Is it reasonable for a strata bylaw to state awnings can only be purchased by a single supplier? Surely we can only enforce that colour must be in line with the scheme?
• QUESTION: Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable Qld strata bylaws platform or should we simply install a product we really don’t want?
• 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 due to health reasons.
• QUESTION: The Committee in QLD is currently reviewing our twenty year old by-laws in an attempt to address some of the matters which are becoming problematic – building security and community power.
• QUESTION: Can we stop a resident from using the facilities if they potentially pose a health risk?
• ARTICLE: ‘Oppressive or Unreasonable’ QLD Strata Bylaws

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Question: On my secluded rooftop deck I have a fire pit. A lot owner has put forward a motion to ban all forms of naked flames. Would a bylaw banning naked flames be lawful, especially when this is an exclusive use area?

In my lot I have a rooftop deck which is solely exclusive use. It is separated by thick concrete walls and not visible to other lot owners. I have a fire pit on the deck which is fully enclosed and on a safe insulated base.

One owner has put a motion forward to ban all forms of naked flames on balconies or rooftop decks.

Would this bylaw be lawful given this is not common property but an exclusive use area?

Answer: By-laws are meant to be regulatory, not prohibitive and they are also not meant to be unreasonable or oppressive.

By-laws are meant to be regulatory not prohibitive and they are also not meant to be unreasonable or oppressive.

The process around exclusive use by-laws is quite involved. Your query doesn’t make clear if this motion is meant to apply to all lots or just yours via an exclusive use by-law. Assuming it’s exclusive use, then have a look at the provisions of section 171 of the Standard Module. You’ll see a resolution without dissent is required. So while the owner can propose the motion it is unlikely it would carry and indeed quite likely the chair should rule it out of order.

My query to you, though, is to ask yourself why another owner is putting forward a motion like this which seems to be quite specific to you? Is there an issue that you and the body corporate need to consider? Are there, for example, issues about fires on the scheme? Have there been complaints and are they legitimate? It might be worth your while to make the enquiries to find out the answers to these questions to prevent situations like this from occurring again. It might be as simple as you explaining to that owner what you note in your query about things being safe and insulated.

Chris Irons
E: [email protected]

This post appears in Strata News #384.

Question: What rights does the Committee have to stop residents from using a facility if they are not obeying the By-Laws to do with conduct?

I’m Chairman on Body Corporate in a Complex on the Gold Coast, QLD. I’m trying to find a specific By-Law about who is entitled to use the indoor Community Pool/Spa in the Complex.

If renters and owners can use these facilities, what rights does the Committee have to stop either party from entering that facility due to not obeying the By-Laws to do with conduct in that area?

Answer: The short answer is no, there’s no option.

From your query it seems as though you’re considering an option where if, for example, there’s been a breach of by-laws about pool use, then someone can be restricted or even prohibited from using the pool thereafter.

The short answer is no, there’s no option. Moreover, how would this actually work? Would there be an ongoing ‘tally’ of breaches or a 3 strikes and you’re out approach? Could someone who has breached ‘redeem’ themselves and then get access privileges back? Do breaches roll over in a specified period, or do breaches get expunged from the person’s record over a period of time? If it’s only a minor breach, does that mean they get only a minor restriction in use of the pool? Who determines this? Is there due process? Does the breached party get a right of reply and ability to put forward their case in a meeting?

You might think all of the above are silly or facetious points, but I can assure you they are things you’d need to consider if you wanted your proposal to actually work. Your better bet is reviewing your by-laws to ensure they are lawful and enforceable and meet your needs. Otherwise you’ll be subject to challenges and frankly, a lot of disharmony.

Chris Irons
E: [email protected]

This post appears in Strata News #376.

Question: Can a Body corporate general motion ban an owner or occupier from moving into or out of their apartment on a set day of the week, or is this unreasonable?

At the next general meeting, the Body Corporate is going to propose a general motion which contains in part “No removal activity is to occur on a Tuesday”. This is part of an overall general motion for Removal and Delivery of Household items.

Can a Body corporate general motion ban an owner or occupier from moving into or out of their apartment on any day of the week or is this unreasonable?

Answer: Setting removals to only 1 day per week is arbitrary and it is when by-laws become arbitrary that typically, they run into trouble.

Why not “no removals on a Friday”? Or a Sunday? Or a day of the week ending in ‘y’? Or why not prohibit removals to only occur on the Summer Solstice, or when there is dancing around a maypole in the common area?

My point is that setting removals to only 1 day per week is arbitrary and it is when by-laws become arbitrary that typically, they run into trouble.

Bear in mind that only an adjudicator in the Commissioner’s Office can determine whether a by-law is reasonable or not and that can only occur upon application by a party to challenge that by-law. That said, based on previous adjudication orders, it is very likely that this by-law would be found to be invalid. Bodies corporate firstly should not be in the business of prohibiting things and secondly should not be in the business of setting some arbitrary limits on things. The by-law as you’ve presented it is similar to pet by-laws in which a 10kg limit is set, and those type of by-laws have usually been found to be invalid.

Chris Irons
E: [email protected]

This post appears in Strata News #371.

Question: We are having a running battle with our Body Corporate Committee about pet ownership. Is it unreasonable to have a ban on dogs over 10 kg at our scheme?

Answer: Without knowing the specifics of the matter, if the committee’s only issue is the dog’s weight, that is not a reasonable objection. This is a well held position in the Commissioner’s Office.

This post appears in Strata News #309.

Question: Is it reasonable for a strata bylaw to state awnings can only be purchased by a single supplier? Surely we can only enforce that colour must be in line with the scheme?

We have a strict Body Corporate Committee. I recently joined to try and provide a little balance. They want to enforce a bylaw that requires lot owners to use a specific brand of awning material supplied by a member’s extended family.

The by law states “prior to installation of any awning/pergola the owner must obtain approval from the committee and any approval will be given providing the colour and design complies with the criteria set down by the committee from time to time”.

My believe we can recommend colour palates to suit, or a general reply to owners that the colour must be in line with the current colour scheme but surely we can’t force them to go with one supplier?

Answer: It all depends on whether it is reasonable.

It all depends on whether it is reasonable.

If there is an alternative contractor and material available which keeps the amenity of the scheme consistent, then I don’t think it would be reasonable to force the one contractor to be used. So I agree with the original question poster.

This post appears in Strata News #282.

Question: Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable Qld strata bylaws platform or should we simply install a product we really don’t want?

Concerning oppressive and/or unreasonable by-laws.

Our QLD registered body corporate committee passed a resolution at a meeting in mid 2014 (registered on CMS in late 2015) saying all new flooring to replace existing flooring must meet 5 star AAAC rating (Lntw <=45 dB).

This was subsequently changed to 4 star AAAC through resolution (Lntw <=50 dB) earlier this year given nothing but carpet on underlay could meet or exceed specified acoustic rating. This latest change is probably not yet registered on CMS.

I have tried to explain to the Body Corporate committee that flooring acoustics is an imprecise science and that, for any owner to guarantee proposed new flooring meets the by-law, owners may require several acoustic tests at considerable cost. Indeed, several thousands of dollars may be spent without laying any new flooring.

The chairman of our committee himself and a number of other apartments have non-compliant flooring (some apartments were previously tested at body corporate expense for the purposes of the by-law consideration). In some circumstances, approval wasn’t sought or gained through committee, however, we’re now advised those who installed non-compliant flooring did so between the passing of the resolution in 2014 and the new by-law registration in 2015 or installed non-compliant flooring prior to the by-law being passed by the committee. We understand and accept the by-law shouldn’t act retrospectively against them.

The building managers have our preferred product installed which easily reaches 3 star AAAC rating of Lntw <=55 dB (5mm loose lay vinyl planking laid on pressure sensitive adhesive over concrete sub-floor) and reside in the apartment below us. They occupy the only apartment that would hear any noise emanating through our flooring.

We currently holiday let our apartment and wish to replace flooring (carpet on underlay) in our living/dining/kitchen areas but are finding anything but carpet or cork are not guaranteed to satisfy the existing by-law/yet to be registered change to by-law.

Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable Qld strata bylaws platform or should we simply install a product we really don’t want?

Answer: We think the industry has taken a wrong turn on this specific issue.

We think the industry has taken a wrong turn on this specific issue.

Our belief is that the floor rating specifications are completely irrelevant and shouldn’t even be in a by-law. The purpose of the flooring by-law (as opposed to rating) is to regulate interferences of noise from one lot to another – which is the age-old nuisance argument.

It is not the type of floor covering that protects from the nuisance, it is the use of the floor itself. You could have a floor with a massively strong rating and if a kid went bouncing a basketball around on it at all hours it is going to transmit noise – and that is what should be regulated.

In our view, the by-law should only require body corporate approval on any flooring installations. The committee can then impose reasonable conditions on the installation and subsequent use. Having a hard and fast rule about any particular type of rating doesn’t make that rating reasonable. It all depends on the circumstances.

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 due to health reasons.

I live in a strata unit in Queensland which allows pets but one bylaw says no pet is able to walk or be carried from the lift through the foyer but must be taken outside via the basement car park up the steps or winding busy driveway without a handrail.

I have difficulty with steps etc because of severe arthritis in my knee. What is the legal position on this? Is the bylaw reasonable? How would I be best to challenge the situation?

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.

It depends on the circumstances and whether the committee can justify those conditions as reasonable but most of the time they would not be able to be enforced.

I would start with writing to the committee to seek their views on whether they would enforce the by-law. If they are taking the view that they would enforce it – then I would submit a motion to change the by-law at the next general meeting.

This post appears in Strata News #235.

Question: The Committee in QLD is currently reviewing our twenty year old 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: Can we stop a resident from using the facilities if they potentially pose a health risk?

A resident has an obvious skin condition which covers a large part of the body area. Regardless, they insist on using our pool and spa facilities.

The other residents are concerned and many now no longer use the amenities because of this.

Do we, the committee, have a right to ask the person not to use the pool and spa due to potential public health risk to others until they can provide a suitable medical certificate stating they pose no health risk to others.

We have attempted to limit activity by use of signage in pool and spa areas.

What rights do we have at law to restrain a person with a potential ‘health risk’ condition from using our facilities?

Answer: It comes down to the “use” of the common property

As always, it comes down to the “use” of the common property.

Rather than Qld strata bylaws that restrict certain types of people or a particular person from using the facilities (which has unreasonable written all over it), there is probably more utility in looking at the interference by-laws.

The extent of those by-laws is set out in section 167 of the Act and essentially prevents an unreasonable interference to other occupiers. Unreasonable interference would include creating a health risk to other occupiers.

That would mean that if:

1. There is a health risk in the person using the facilities – the person would be prevented from using the facilities.
2. There is no health risk – the person would not be prevented from using the facilities (and rightly so).

Rather than jumping straight into by-law enforcement of Act contravention mode – a polite letter to the owner might be the most amicable way to deal with it.

This post appears in Strata News #106.

‘Oppressive or Unreasonable’ QLD Strata Bylaws

If you are in the strata management industry, expect to see a lot more of ‘oppressive or unreasonable’ when it comes to QLD Strata Bylaws in coming years.

Section 180 of the Body Corporate and Community Management Act 1997 sets out limitations for by-laws. Amongst other things ‘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 and the use of the common property for the scheme’.

This is where the changes to the landscape for pets in bodies corporate came from. If a pet does not impact on other owners, then why shouldn’t an owner be able to keep one? Click here and here for prior articles on pets.

Consider any number of typical by-laws that exist in a CMS. One might relate to the use of the pool. Quite often a by-law will set out pool hours. That by-law might say that the pool cannot be used between 10 pm and 7 am.

Is that reasonable?

Objectively we think there is a very strong argument that it is not.

Take this example. An owner works as a policewoman. She finishes her shift at midnight. If she isn’t going to do bomb dives in the pool and yahoo around with unrestrained abandon when she has that swim, then why shouldn’t she be allowed to have a dip at 1 am?

If the use of the pool doesn’t interfere unreasonably with other owners, the by-law could very well be oppressive or unreasonable.

That is just one example. Take another typical townhouse by-law. ‘Vehicles over two tonnes must not be driven across the common property.’ Why? Is there any engineering evidence that sets out that the common property roads cannot take a vehicle of that weight? Or did someone (probably a junior lawyer or vigilant committee) in distant years past lick a finger put it in the air and decide that two tonnes was the limit? Is it oppressive? (probably not) or unreasonable? (quite likely if the weight limit was just plucked from thin air).

Society is changing. Technology is allowing people to work different hours and roles. Shift workers abound. Generation Y is far less compliant than the baby boomers and generation X. In a body corporate context, ‘Y’ might as well be ‘why.’

If you think Qld strata bylaws are enforceable just because they are in a CMS, think again.

Have a question or something to add to the article? Leave a comment below.

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Chris Irons
E: [email protected]
Frank Higginson
E: [email protected], Hynes Legal

Read next:

• QLD: Making Sure Your Bylaws are Correct
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