This article discusses committee power to change by-laws, explaining the role of a body corporate committee in reviewing and proposing by-laws in Queensland and the approval process required by owners.
Question: Does the committee have the power to review by-laws in conformity with the current laws and legislation pertaining to body corporate in Queensland?
Does the committee have the power to review/amend/change a by-law in conformity with the current laws and legislation pertaining to body corporate in Queensland?
The secretary of the committee told us at the AGM that only lawyers can draft and change the current by-laws.
Answer: The Committee itself cannot pass a by-law but it usually plays a leading role in reviewing existing by-laws and proposing new ones.
By-laws have to be approved by owners at a general meeting by a special resolution or resolution without dissent.
The Committee itself cannot pass a by-law but it usually plays a leading role in reviewing existing by-laws and proposing new ones. Typically the Committee might conceive of the by-law, engage a lawyer to draft a proposal then call a general meeting for the matter to be voted on.
It is not a requirement that a by-law has to be drafted by a lawyer but in most cases, it makes sense to engage one to do this work to ensure the by-law is correctly written. It’s a small cost for a binding regulation that will govern your property for an extended period of time. And, it’s always better to get a specialist strata lawyer to do this work. They have the experience and understanding to help ensure that the law is compliant and effective.
If an individual owner is proposing a by-law for their benefit it is not unreasonable to ask that an independent lawyer draft or review this proposal and that the applicant pay for the costs.
It’s worth remembering that while by-laws can be quite flexible in their intent and outcome there are a number of restrictions stating that by-laws cannot:
- Be inconsistent with the Act or any other legislation.
- Stop or restrict a sale, lease, transfer, mortgage or other dealing with a lot.
- Discriminate between types of occupiers.
- Be unreasonable, when the interests of all owners and occupiers in the scheme and the use of the common property are considered.
- Restrict the type of residential use of a residential lot.
- Impose a monetary liability on an owner or occupier (except in an exclusive use by-law).
- Stop an owner or occupier from installing solar hot water or solar power on their lot because it affects the look of the building.
- Stop a person with a disability from having a guide, hearing or assistance dog on the scheme.
Any by-law proposals need to be considered in that context or they could be challenged in the courts.
For more information please see the Queensland Government website: Queensland Government – Making by-laws
This post appears in the May 2021 edition of The QLD Strata Magazine.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924