This article discusses whether a CMS by-law can override building format plan maintenance obligations
Question: Our complex has two plan formats, building and standard. The CMS states “maintenance and decoration of the lot is the owners responsibility”. Does this override the Building Format rules?
Answer: The simple answer is ‘no’.
We understand the reader’s question can be summarised as follows:
- The reader’s Scheme has some lots which are registered under a Building Format Plan of subdivision (BFPs) and some lots registered under a Standard Format Plan of subdivision (SFPs).
- A by-law within the Scheme’s Community Management Statement (CMS) provides that an owner is responsible for the maintenance and decoration of their lot. We presume that this by-law purports to apply to the BFPs, or silent on its application to BFPs and/or SFPs.
- Does this by-law contradict the statutory obligations of bodies corporate insofar as BFPs are concerned?
The simple answer is ‘no’.
This by-law appears to be intended to reflect section 211(3) of the Standard Module / 201(3) of the Accommodation Module, which relevantly states:
“The owner of a lot included in the scheme must maintain the lot in good condition.”
However, in our respectful opinion, the wording of the quoted by-law is vague and ambiguous as to its scope and application. Accordingly, there would no doubt be several different interpretations of this by-law which might be formed by different owners and the Committee.
In our view, given the ambiguity of the by-law, whether the by-law contradicts the statutory obligations of bodies corporate (insofar as BFPs are concerned) will come down to how the by-law is interpreted and implemented by the Body Corporate.
In our opinion:
- The by-law must be read in conjunction with the Body Corporate and Community Management Act Qld 1997 (the Act) and the relevant regulation module; and
- As long as the interpretation being implemented is consistent with the Act and Module’s position on the maintenance and decoration in BFPs, the by-law would likely be valid and enforceable.
- However, if the interpretation being implemented attempted to place maintenance obligations on owners of BFPs which are inconsistent with the Act or Module, then the by-law would be invalid insofar as the inconsistency extends (pursuant to section 180(1) of the Act).
We provide a further explanation as follows:
Valid interpretation of the by-law: By way of example, where an owner has failed to maintain the tiles within their lot, the Body Corporate could validly enforce the by-law to require the owner to undertake such maintenance, as floor coverings fall within the owner’s maintenance responsibility pursuant to section 211(3) of the Standard Module.
Invalid interpretation of the by-law: By way of example, where balcony balustrades in a BFP lot require maintenance, those works will likely fall within the Body Corporate’s responsibility (pursuant to section 180(2)(a)(i) of the Standard Module). If the Body Corporate attempted to enforce the quoted by-law to require the owner to undertake those balustrade works, there would be a good argument that the implementation of the by-law is invalid pursuant to section 180(1) of the Act, because it conflicts with section 180(2)(a)(i) of the Standard Module.
To summarise, the quoted by-law cannot override the statutory obligations of lots created under BFPs. The quoted by-law is, in our respectful opinion, vague and ambiguous and in turn, depending on the individual circumstances of its application, could be both validly and invalidly applied.
This post appears in the September 2021 edition of The QLD Strata Magazine.
Jessica Cannon and Jessica Stanley
Cannon + Co Law
E: jessicacannon@cannonlaw.com.au
P: (07)55 548 560
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