This article outlines the procedures for by-law enforcement applications in Queensland strata schemes, detailing the specific steps and common pitfalls for both bodies corporate and individual owners or occupiers.
Body corporate by-laws are an essential element for regulating the use and enjoyment of common areas and lots within strata title complexes.
All owners and occupiers are bound to follow their scheme’s by-laws, while a body corporate must enforce them and act reasonably in doing so.
Although it’s a two-way street, owners and occupiers in the scheme can also take action.
While most dispute applications simply require evidence of attempts at self-resolution, an applicant seeking to enforce the by-laws must comply with the mandatory procedure stipulated in the Body Corporate and Community Management Act 1997 (the Act) before lodging an application with our office.
This article explains the preliminary procedure for by-law enforcement applications and highlights some of the common things to avoid.
Preliminary procedure where the dispute is brought by the body corporate
According to section 184(2) of the Act, a body corporate can only lodge a dispute application to enforce the by-laws if it has given the owner or occupier a contravention notice for the breach that is the subject of the dispute.
A contravention notice must:
- state that the body corporate believes the person is breaching a by-law
- identify the by-law the body corporate believes has been breached
- explain how the by-law has been breached
- explain that not complying with the notice allows the body corporate to:
- lodge a conciliation application through the Office of the Commissioner for Body Corporate and Community Management
- commence proceedings in the Magistrates Court.
There are two types of contravention notices – a continuing contravention notice and a future contravention notice.
Both types of contravention notices must contain the information outlined above.
The only difference between the two is:
- the continuing contravention notice requires the body corporate to set a timeframe for the person to rectify the issue
- the future contravention notice tells the person not to repeat the breach for the length of time the notice is in effect, which cannot be more than three months.
Which contravention notice the body corporate chooses to issue depends on the nature of the breach.
For instance, if an owner has changed the appearance of their lot without approval, a continuing contravention notice would normally be issued, as the breach is ongoing and likely to continue.
On the other hand, if someone has hosted disorderly parties, the body corporate would typically issue a future contravention notice, as they do not want the past behaviour to be repeated.
The body corporate can use the BCCM Form 10 (continuing contravention notice) or BCCM Form 11 (future contravention notice). However, these are not prescribed forms.
If the body corporate wishes to send their own contravention notice, all the information above must be included in the notice.
Contravention notice must match the current dispute
Bodies corporate must remember that failing to properly issue a contravention notice can potentially derail an otherwise strong application.
In Mountainview [2016] QBCCMCmr 345, a dispute arose about whether the respondent was keeping a boat on their lot in breach of the by-laws.
A contravention notice was not given to the respondent about the boat, as the body corporate manager had inadvertently omitted from the contravention notice (which dealt with other breaches in dispute) the relevant by-law that had been breached.
The adjudicator observed that the body corporate had only given the respondent a letter regarding the boat issue, which did not appear to be intended as a contravention notice.
Although the adjudicator accepted that the by-law had been breached, they determined that “the application in respect of the boat was not properly made” and that there was therefore “no jurisdiction to make an order in respect of the boat”.
Similarly, in Victoria Cove [2024] QBCCMCmr 17, the body corporate sought an order that all owners and occupiers of Lot 31 stop parking on common property.
However, the body corporate only named one co-owner as the respondent in the application form. The other co-owner and occupiers (family members) were only listed in the application as ‘affected persons.’
Also, a contravention notice was only sent to the two co-owners about the alleged by-law breach.
In the interests of natural justice, the adjudicator determined that they “can only contemplate making an order against the respondent named in the application”.
The adjudicator also observed that even if the body corporate intended to make the ‘affected persons’ respondents to the application, the application was not properly made, as the body corporate had not complied with the mandatory procedure for lodging an application to enforce the by-laws.
As demonstrated by the two cases above, it is prudent for bodies corporate to ensure that the contravention notice issued matches the proposed application.
Preliminary procedure where the dispute is brought by an owner or occupier
According to section 185(2) of the Act, an owner or occupier (the complainant) can lodge a dispute application to enforce the by-laws only if:
- the complainant has first asked the body corporate (using an approved BCCM Form 1) to give the accused person a contravention notice for the by-law breach that is the subject of the dispute; and
- within 14 days of receiving the BCCM Form 1, the body corporate does not advise the complainant that a contravention notice has been issued.
Unlike the optional BCCM Forms 10 and 11 that the body corporate can use for a contravention notice, BCCM Form 1, used by owners and occupiers to notify the body corporate of a by-law breach, is a prescribed form.
BCCM Form 1 must match the current dispute
Owners and occupiers must be mindful that including incorrect details on a BCCM Form 1 can obstruct a by-law enforcement application.
In Horizons [2023] QBCCMCmr 204, the applicant owner claimed that noise was caused by the respondent owner’s flooring not being properly soundproofed.
Although the applicant had given two approved forms to the body corporate, an accused person was not named in the forms – they only referred to “Unit 31”.
The approved forms also appeared to relate to breaches of the former occupier regarding noise and the behaviour of invitees, rather than the current dispute about the respondent owner’s flooring.
Consequently, the adjudicator determined that the applicant had not complied with Section 185(2) of the Act, which requires the by-law breach identified in the BCCM Form 1 to be the subject of the dispute.
The above case serves as a reminder to owners and occupiers to be vigilant about checking information in the BCCM Form 1 matches their application before lodging it.
Where a contravention notice has been issued
If the body corporate issues a contravention notice in response to a BCCM Form 1, it effectively blocks the owner or occupier from pursuing by-law enforcement directly against the accused person.
In the same matter of Horizons, the body corporate applied for conciliation against the respondent owner after issuing a contravention notice in relation to the flooring. As the issue was still unresolved after conciliation, the applicant owner lodged an adjudication application directly against the respondent owner.
It was determined that the body corporate had assumed responsibility for enforcing the alleged by-law breach by issuing a contravention notice.
The adjudicator remarked that even if the body corporate decided not to pursue enforcement further, this “does not then allow the applicant owner to take it upon herself to enforce the by-laws by lodging her own application against the respondent. This is particularly so in circumstances where the applicant has not first issued the body corporate with an appropriate Form 1 for the alleged contraventions”.
Likewise, in Carefree [2019] QBCCMCmr 22, the adjudicator was unable to consider the by-law breaches alleged by the applicant owner, as the body corporate had already issued a contravention notice to the respondents.
Rescinding a contravention notice
Where the body corporate issues a contravention notice in response to a BCCM Form 1 from an owner or occupier, it is only open to that owner or occupier to lodge an application against the body corporate to enforce the by-laws.
Understandably, pursuing the body corporate is often viewed as a roundabout and uncertain way of dealing with breaches. The general preference of owners and occupiers is to tackle the breach directly with the accused person.
Therefore, where the body corporate has issued a contravention notice and does not intend to pursue the breach further, a possible solution may be for the owner or occupier to ask the body corporate to rescind the contravention notice.
When deciding whether to rescind the contravention notice, the body corporate and its committee are obliged to act reasonably under the Act.
Rescinding the contravention notice would most likely clear the path for the owner or occupier who initially gave the BCCM Form 1 to pursue the accused person directly.
Bodies corporate should not always issue a contravention notice
There is a common misconception that bodies corporate must issue a contravention notice after receiving a BCCM Form 1 from an owner or occupier – this is not the case.
Sections 182 and 183 of the Act expressly provide that if the body corporate ‘reasonably believes’ that an owner or occupier is breaching a by-law, the body corporate may give the person a contravention notice.
We strongly advise bodies corporate not to issue a contravention notice if they do not reasonably believe that a person is breaching the by-laws. As discussed earlier, issuing a contravention notice means:
- the body corporate takes on responsibility for enforcement
- the owner or occupier who gave the BCCM Form 1 is prevented from pursuing the accused person directly (unless the body corporate rescinds the contravention notice).
It is also important to recognise that issuing a contravention notice does not automatically resolve the issue. On the contrary, issuing a contravention notice is the body corporate’s first formal step towards enforcing the by-laws.
In Marlin Cove [2008] QBCCMCmr 121, an application was lodged against the body corporate for failing to enforce a contravention notice regarding noise and the use of common property.
The body corporate issued a contravention notice due to a mistaken belief that that they were required to do so under the Act.
The adjudicator noted: “I find nothing in section 185 that requires the Body Corporate to issue a contravention notice just because a complainant asks them to. In fact I consider it inappropriate for the Body Corporate to issue a notice if they did not believe a breach had occurred or was likely to occur.”
The adjudicator ultimately voided the contravention notice, noting that this action “will leave the way open to the applicants to lodge an application directly against the Owner of Lot 43 if they wish”.
Likewise, in Calypso Bay Residential Land [2023] QBCCMCmr 317, an application was lodged against the body corporate for failing to enforce a contravention notice regarding the location of a clothesline.
The adjudicator determined that “the committee’s decision not to take further enforcement action … is a constructive withdrawal of the contravention notices”. Therefore, the adjudicator considered the preliminary procedure in Section 185(2)(b) of the Act to have “effectively been fulfilled”, clearing the path for the applicants to pursue the accused person directly in a future application.
It is apparent from the cases discussed in this article that the mandatory procedure for by-law enforcement has the potential to trip up applicants. In view of the considerable time and effort invested in the dispute application process, we understand that it would be vexing for non-compliance with preliminary procedure to negatively impact an application.
As discussed, the preliminary procedure that must be fulfilled differs depending on whether the applicant is the body corporate, or an owner or occupier. Therefore, bodies corporate, owners and occupiers must familiarise themselves with the relevant process before lodging an application.
We hope that highlighting the common pitfalls will help future applicants to steer clear of them.
Information Service Freecall 1800 060 119
Commissioner for Body Corporate and Community Management
This post appears in Strata News #745.
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Read next:
- QLD: By-Law Series – Part 4 – Enforcement
- QLD: Body corporate 101 for tenants in community titles schemes
- QLD: Mandatory self-resolution in community titles schemes
This article has been republished with permission from the author and first appeared in the BCCM Common Ground newsletter.
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