This article about making sure your bylaws correct are correct has been supplied by Todd Garsden, Mahoneys.
Given the recent lockdowns that have forced many occupiers to spend more time within their lots, interferences between occupiers have been tested to their limits. Committees may have then found themselves unable to properly manage these interferences because their by-laws were insufficient.
The purpose of by-laws is to provide the committee the power to regulate the use of lots, body corporate assets and common property unique to the body corporate.
Committees have a statutory obligation to enforce the body corporate’s by-laws. However, by-laws are often forgotten about until they are actually needed to be enforced.
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The problem for bodies corporate with that is:
- There are a myriad of legislative requirements for a by-law to be valid (and if it is not valid it cannot be enforced);
- Changing by-laws is not necessarily a quick process; and
- This leaves the committee in a position where it cannot effectively regulate improper conduct when that improper conduct actually takes place, leading to the view that by-laws are a toothless tiger.
Requirements for by-laws
By-laws:
- must be regulatory and not prohibitive;
- must be consistent with the BCCMA;
- cannot restrict the type of residential use for a residential lot;
- cannot restrict dealings with a lot;
- cannot discriminate between different types of occupiers;
- cannot impose a monetary liability; or
- must not be oppressive or unreasonable.
If a by-law offends any of these requirements it cannot be enforced by the committee.
Changing by-laws
Aside from exclusive use by-laws, a change to the by-laws requires a special resolution at general meeting and registration of the change at the Titles Office.
This means that any changes must be implemented well in advance of the improper conduct taking place.
Enforceability
If by-laws meet the above requirements they can be successfully enforced by following the specific procedure of enforcement set out in the legislation.
Often this specific procedure is not followed, where the committee looks to shortcut the process. This prevents the committee from successfully enforcing the by-laws.
The committee just needs to have the correct by-laws in place earlier than the improper conduct before beginning the enforcement process.
This post appears in Strata News #372.
Have a question about making sure your Bylaws correct are correct or something to add to the article? Leave a comment below.
Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753
W: https://www.mahoneys.com.au/
Read next:
- QLD: The First Virtual General Meeting Has Been Challenged
- QLD: Social Distancing Requirements For Bodies Corporate?
- QLD: Actions for Your Body Corporate Committee During COVID-19
This article has been republished with permission from the author and first appeared on the Mahoneys website.
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I would like to add a patio to the rear of my villa (exclusive use of common property).
Our by-laws are roughly 20yrs old and state no structural alterations will be made. An owner must not in any way, alter the exterior of the lot, gardens or grounds, nor cause to be constructed or placed upon any part of the lot which can be viewed from outside the lot without consent from the committee.
So my questions are- if I am adding a patio to my lot, is that deemed…
A) an alteration, or addition/improvement
B) if it is not able to be seen (which it would not be, except if peering over my back fence), do I need body corporate approval?
The by laws seem a little ambiguous to me.
My requests for approval of this patio (which has been quoted under $3000), are being ignored by our present committee. They will not even acknowledge the request. I would like the patio to be constructed before the next committee meeting which is 3 months away.
With the by-laws being so ambiguous, and with council approval, could I go ahead with my plans without waiting for the committee’s approval without consequence to myself
If I was the Chair of the Committee, I would expect an engineer’s report stating that your new patio will not cause structural damage.
Any change to the exterior of the lot must seek approval.
If you did go ahead, without the approval, then the Committee is within their right to ask you to pull the patio down as approval was not given even though you did seek it out.
To ignore this unpleasantness, I would seek a ruling from the courts. To avoid the courts (and the courts would probably expect you to do this first) I would ask that a ballot be conducted to all owners to vote whether your patio can go up or not (hopefully with your diagram attached to the ballot along with the engineer’s report) – I can’t remember the % but you would probably need 75% approval from all owners as it is a structural change.
In the meantime, the committee really should update their old by-laws to avoid these issues in the future.
We are in our first year of a new scheme and there are no by-laws relating to use of the pool or BBQ facilities. Rather, it seems to all hinge on a by-law stating. Occupiers and Invitees must comply with notices displayed on the Common Property by the Body Corporate or any statutory authority.
Whilst there is signage located in both of these areas, I don’t believe that would be sufficient in the event that a by-law would need to be legally enforced?
We have responded to your comment on this article: QLD: Q&A Bylaws, General Rules & The Act
What can be done when the Body Corporate Committee doesn’t enforce by-laws/regulations?
They have been extremely “selective”……eg. enforcing some owners to comply with complex conditions for internal renovations, but totally ignoring another owner who didn’t even apply for permission to do similar renovations. Also, there have been different Conditions of Approval from the Body Corporate Committee, for the same work to be done, by different owners.
Hi there
The committee has an obligation to enforce by-laws, but only when it is reasonable to do so.
The committee cannot selectively choose to enforce by-law contraventions just because of who the occupier is, but can do so if there is insufficient evidence or it would be unreasonable for another reason.
If someone is concerned about another person’s by-law contravention notice it might be useful to send the committee a BCCM Form 1 to formally request the by-laws to be enforced.
https://www.publications.qld.gov.au/dataset/15278951-506c-408a-a9e7-18b6d5103f6b/resource/a7a7843d-5c48-4411-bff7-4ed2cd2e5fc9/fs_download/bccm-form-1.pdf
If the by-laws still aren’t enforced after sending the BCCM Form 1, it then allows the concerned person to enforce the by-laws directly.
Similarly, there is no requirement for conditions of approval to be the same – but they need to be reasonable in each individual circumstance.