Qld lot owners are concerned about the appearance of the lot and what would constitute a breach.
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- QUESTION: One of the lot owners has breached our common property bylaws on a number of occasions. The committee cannot agree on issuing contravention notices as the lot owner in question is also a committee member.
- QUESTION: We have a body corporate chairperson who treats the common property garden area as if it was his exclusive use area and it is full of his unsightly items. What about the appearance of the lot? What do we do now?
- QUESTION: We put a cat enclosure on our balcony and received a breach notice under the Appearance of Lot bylaw. Isn’t a cat enclosure just like outdoor furniture? Why is no-one else in breach?
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Question: One of the lot owners has breached our common property bylaws on a number of occasions. The committee cannot agree on issuing contravention notices as the lot owner in question is also a committee member.
I am on the committee for our 12 individual lot community title scheme. One of the lot owners has breached our common property bylaws on a number of occasions. The committee cannot agree on issuing contravention notices as the lot owner in question is also a committee member and holds sway over a couple of other members.
There have been a few attempts to have a ‘conversation’ with the lot owner but not once have they taken responsibility for their actions and they just come back and say that they are putting the areas in question back to how they were before. This is a problem in itself as their version of how it was is a lot different to how other committee members view it and it is not just replacing as their actions have generated other problems which they seem oblivious to.
The other committee members are concerned that if problems arise in the future from a sub standard of ‘fixing’ and the other problems are not addressed then the whole body corporate will be asked to wear the cost.
Answer: When there’s an alleged breach of by-laws and the person allegedly breaching is a committee member then yes, that’s tricky.
When there’s an alleged breach of by-laws and the person allegedly breaching is a committee member then yes, that’s tricky.
That said, it’s not impossible and ultimately it’s all about following the standard process which applies to any owner or occupier. The committee must firstly make a decision. You say the committee ‘cannot agree’. Has the matter actually been put to a vote or has it been a discussion only? If it’s the latter then that will not suffice, it must be put to a vote of the committee. Like any by-law breach allegation, the decision the committee must make is whether they will issue the contravention notice and in order for them to do that they must also be satisfied there’s enough evidence to warrant it.
They’re the only decision to make. If the committee doesn’t think there’s enough evidence – your email suggests otherwise – they don’t issue.
Once the committee decision is made – which will either be issue or not issue – then everything follows from that. Any owner or occupier can require the committee to enforce the by-laws, if they haven’t already and then as a committee, the next step is to seek by-law enforcement through the Commissioner’s Office.
I may sound like a broken record, but if nothing gets done here then the issue will remain unresolved and potentially get worse.
Chris Irons
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
This post appears in Strata News #381.
Question: We have a body corporate chairperson who treats the common property garden area as if it was his exclusive use area and it is full of his unsightly items. What about the appearance of the lot? What do we do now?
We have a body corporate chairperson who treats the common property garden area outside his ground-floor unit as if it was his exclusive use area. He has pots on it, we have reindeer, plastic kangaroos leftover from last Christmas and it is very unsightly.
The was told to remove the items by the previous body corporate committee. He agreed to remove the items but nothing has been done.
What about the appearance of the lot? What do we do now? We have a new committee who have been hand-picked by the chairperson and his best friend the facilities manager.
Answer: Complete a BCCM Form 1.
I suspect that this would be a breach of the scheme’s by-laws (but would need to read them to double check). If the owner would like action taken they should complete a BCCM Form 1 and send it to the committee.
The committee will then need to choose whether or not to take by-law enforcement action. If the committee chooses not to, the owner can then seek to enforce the by-laws without the intervention of the committee (but needs to give the committee the opportunity to do so first).
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
This post appears in Strata News #287.
Question: We put a cat enclosure on our balcony and received a breach notice under the Appearance of Lot bylaw. Isn’t a cat enclosure just like outdoor furniture? Why is no-one else in breach?
I have a question as a tenant in a multi-unit complex. Our units are highly visible to the street and other units due to the layout. Several of them have glass fronts to the balconies and the bottom floor has open staircases up to the apartment doors. Due to this layout, every balcony has furniture and other items visible from the street and other lots. We put a cat enclosure on our balcony and received a breach notice under the following bylaw:
Appearance of Lot
An occupier must not hang any washing, towel, bedding, clothing or other articles or display any sign, advertisement, placard, banner, pamphlet or like on any part of its Lot in such a way as to be visible from another Lot, the Common Property or outside the Scheme Land, except with the consent in writing of the Body Corporate Committee.
If we are in breach because we have outdoor furniture then due to the design of the units every single property is in breach. Do we have redress under fair application (nobody else seems to have been given this notice), that outdoor furniture isn’t covered or the fact that the bylaw is not feasible practically if applied in that manner?
Answer: The committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.
All occupiers need to comply with the by-laws and the committee must act reasonably in enforcing any breaches – so the committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.
So the committee must either enforce all breaches (which is their obligation) or take the same approach to all breaches
Depending on the size and visibility a cat enclosure would be capable of breaching that by-law.
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
This post appears in Strata News #203.
Have a question or something to add to the article? Leave a comment below.
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I would like to advise that all of our improvements have recently been approved. Our AGM is in August and I hope to become a Committee member and keep abreast of what’s happening in our block
Many thanks
Hi Christine
Great news!
All the best moving forward and on taking up a position on the committee.
Let us know if you need any assistance in the future. Happy to do what we can to help.
that is a very tricky question , when the entire committee breech the by laws where do you go then ?
Hi Dave
The following response has been provided by Chris Irons, Hynes Legal:
By-law breaches are against a person rather than a group. Whether someone is or isn’t on the committee, the same process of enforcing a by-law applies to them. Obviously the fact they’re committee members complicates things and ultimately if you believe there is a breach, go through the steps to enforce a by-law and the committee declines to take action or take the action you consider should be taken, you can then dispute that through the Commissioner’s Office.
I’m only talking about by-law breaches here. If you’re saying that you want to consider removing the committee because of their breaches, then that’s a different story and process altogether.
We bought land in a small 14 lot BC , we did do searches into the body cooperate and there was nothing unto wards at that stage , we later found out the all the committee have placed structures on common property, Form ones were issued , the committee only acted by creating a register to say that all encroachments, were historic and therefore they granted them selves the common property . they held a committee meeting 3 months prior to our purchase where they made the statement that there were no structures on common property except letter boxes and garden beds , this statement was made in regards to obtaining insurance for the estate i have been told by a past committee member , this problem will never go away and the property is virtually unsalable in its current form .
Hi Dave
As your question is detailed and relates to a specific situation, we are unable to provide advice. Responses can only be of a general nature. We suggest you seek independent legal advice from a qualified professional.
We would be happy to recommend someone to you.
Could you forward a qualified professional that i can contact , thanks Dave W
Hi David
We suggest you contact Frank Higginson and Chris Irons from Hynes Legal. Their contact details are listed in the article above.
Can the by-laws in a complex be reviewed and potentially changed to reflect the community and the years since they were first put in place? Do they need necessarily reflect the BCCM laws or can they be things that the community agree on ( majority that is ) . Do they have to be drawn up by a Lawyer or agreed to by the Commissioner ? What process is required ? are there any areas that cannot be changed?
Hi Edward
Chris Irons, Hynes Legal has provided a response to your question in this article: QLD: Q&A Bylaws, General Rules & The Act
Hi there
Queensland legislation requires smoke alarms be upgraded by 1 January 2021.
It has been suggested that installation of new alarms is a body corporate responsibility because smoke alarms are connected to the fire system. A quote has been received for $1000 per unit to become compliant.
The alternate view is that compliance with the new legislation is a lot owners responsibility.
Who is correct, and why?
Hi Steve
The following response has been provided by Chris Irons, Hynes Legal:
I think you’ll need legal advice on this one. This can be a very contested issue and dependent upon the specific features of the building. Given the issue and its literal life-and-death connotation, you would want the assurance of qualified advice before making any decisions or actions.
Thank you for your help and I apologise for the auto corrections. I will call the free call no to get more advice. We have withdrawn our shed and patio cover application and the EGM will now be a committee meeting only for our pet application which will be held on Friday.
We are hoping to put semi permanent gazebo up, changed the shed position so it’s less visible plus we planted trees around the perimeter of our fence. The trees match other plantings.
We downsized from a large home to a unit down the road so we could stay in the area we loved. We asked the owner (who was chairman of the Committee) and the agent could we have a dog, could we put a shed, spa and a patio cover ? The answer was its yours you can do what you like. Two weeks after moving in (2/1/20) we had the unit painted and Windows cleaned replaced the appliances etc. I texted the BCM to ask if they would have the gardener tidy up the garden in front of our ground floor unit as it was very overgrown and we didn’t own a trailer. We were told that was the owners responsibility. So we hired a man to clean up and whilst in the middle of doing this received a call from BCM and told us there was a complaint that we were chopping down trees that were affecting the privacy of the unit above, plus we had a dog who barked incessantly and my husband’s smoking was a problem for them as they couldn’t hang out their washing on the bedroom balcony.
We advised that we were clearing our the shrubs (Pepper Tree) and none reached the height of the 2nd flr. The owner was in Sydney and had received the call from her friend who was staying there. My husband approached the friend the next day and asked if he had a problem could he address it with us first and he denied any problem whilst patting our very small dog. We were advised to apply for the shed and the patio cover and dog, which we did. We had a visit from an owner who only uses his unit 3mts a year to see what we were doing and were told by another resident (renter) that her owner sent her a copy of the chairman of the committee email stating all the problems associated with out application. We talking with BCM she advised me to contact the chairman. After a few emails he said it would be 5 against 3 so far but would not offer any other suggestions or what particular items were in dispute. The meeting is in a week and I would like to know if alternates can be discussed at the EGM eg a gazebo, smaller shed however not the dog. Sorry this is so long winded I have read (probably should have looked into more throughly before we purchased but we do love it here) many articles and by laws re Exclusive Use areas but it all seems ambitious. Thank you
In the spirit of negotiation, perhaps the Committee instead of providing a blanket NO could provide another solution.
If the problem is that it is too visible from the street, perhaps it could be smaller which wouldn’t detract from the outward appearance of the property.
I would not know of any other plausible reason for the negative response, other than that it is too big and may not be attractive to would-be investors.
I would be interested to know if there was a mediation body out there which can resolve these disputes without going to a tribunal to challenge the by-law.
Hi LVC
We have received the following reply back from Frank Higginson, Hynes Legal:
It all comes back to reasonableness. Rather the pushing the committee to put forward a solution, you should. If that solution is reasonable in all of the circumstances (which is the nebulous grey area us lawyers usually play in) they cannot refuse it. If they do, that is where the Commissioner’s office comes in. You can freecall them on 1800 060 119 to have a chat too if you want. Their information service is designed for exactly your type of situation.
From Frank Higginson, Hynes Legal:
“[…] … (which is the nebulo*us* grey area *us* lawyers usually *play* in) … […]”
So many lawyers…so little time. ;^) *We* (s)can but live in hope. To uscertain ..err.. ascertain if it should be “us” or “we”, one only need remove “lawyers” (were it so easy done literally, given *we* are all ‘said’ trying to be on the very same ‘page’!), then see how it reads grammatically; and the decision to include the word “grey” immediately following “nebulous” not only ‘clouds’ the mind in its tending to *”play”* upon it somewhat, but comes across as being a tad too tautological to boot.