This article discusses a body corporate’s duty to act and the options available to owners when body corporate bylaw enforcement obligations are not being met.
Question: What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?
My Body Corporate is a standard module. My Neighbour breached a by-law. I issued a form 1 to the Body Corporate and the Body Corporate followed up a form 10 and 11 to the accused with 14 days to comply. 14 days passed, and the accused continued with the by-law breach.
1 month on from the issuing of the contravention notices the accused was still breaching the by law.
The Body Corporate committee held a committee meeting with this item on the agenda. At the meeting, the committee acknowledged the breach was continuing and stated they were not prepared to spend Body Corporate money to progress the case through BCCM.
What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?
Answer: Legislation requires that the body corporate must (not may) enforce its by-laws.
While I appreciate the body corporate’s desire to save money – after all, that is money that you will foot, as part of your levies – frankly it doesn’t have a choice. Legislation requires that the body corporate must (not may) enforce its by-laws. In this case, it appears the committee has agreed there is evidence of the breach, so it must enforce.
Given it has apparently decided not to, you have two options. You can either dispute their decision to not enforce, or you can enforce the breach directly against the accused. Both options will end up in my former Office (The Commissioner’s Office). On the latter option, there are a few steps you firstly need to undertake (e.g., you must try and resolve the matter with them directly).
You need to be aware also that it will take several (many) months for the outcome to be decided. With that in mind, and what I’ve said above about cost and process, I think it is not a bad idea to reflect upon the by-law breach and the impact it is having upon you. In other words: is it going to be worth your effort? Sorry to put it in such pessimistic terms, I am only trying to be practical.
If one of your aims is to hold the body corporate committee accountable for not pursuing this, then the best you could hope for would be that if this goes to adjudication, the adjudicator makes an adverse finding against the committee for their (apparent) inaction, as happened in the recent, high-profile smoking decision in Queensland. That said, there’s no punishment, fine, sanction or penalty which applies, other than the fact that adverse finding is on the public record. I’m not sure how that would help you though.
This post appears in the April 2021 edition of The QLD Strata Magazine.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
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