This article discusses whether lot owners can initiate action using Form 1 bylaw enforcement when caretakers and committees fail to address ongoing bylaw breaches.
Question: Our caretaker will not enforce bylaw breaches. As a lot owner, can I issue a Form 1 to start breach proceedings?
Our caretaker refuses to notify residents they are parking on common property without committee permission. He refuses to passing offenders information onto the committee for action. The committee wont take any action against the caretaker.
As an owner, can I lodge an official complaint with the Body Corporate Commission or do I submit a form 1 to the committee seeking some action? What would be the correct procedure?
Answer: There are a number of steps body corporates can take to enforce by-laws starting with informal discussions or warnings advising of the breach.
The caretaker not assisting may be frustrating, but their role here is something of a red herring as enforcement of by-laws does not require any interaction with that office.
There are a number of steps body corporates can take to enforce by-laws starting with informal discussions or warnings advising of the breach.
After that, the first formal step is for a by-law contravention notice to be issued. The decision to do this can be made by the Committee or the Body Corporate at a general meeting. A continuing contravention notice can subsequently be issued if the matter is not resolved.
If a person does not comply with the notices, the Body Corporate can then start proceedings in a magistrates court or apply for conciliation to enforce the by-law.
For individual owners seeking to enforce the by-laws they can send a notice of the contravention, a Form 1, to the Body Corporate asking that the Body Corporate send a contravention notice to the person they believe is breaching the by-laws. If the Body Corporate doesn’t tell the owner or occupier who is making the complaint within 14 days, the complainant can apply for conciliation against the person they believe is breaching the by-laws.
The government website has a detailed explanation of the steps and options available to owners in these situations: Queensland Government: Enforcing by-laws
By-law breach notice forms can be found at: Queensland Government: Body corporate by-laws
Owners are advised to collate as much clear evidence as possible when making a by-law contravention submission. This could include photos and audio files as appropriate.
Going back to the caretaker you may want to check their contract carefully to check their scope of works and what action they are supposed to take when the committee directs them to. Their position may be technically correct, but perhaps there is another technically correct position that could lead to them taking more action.
As this issue involves parking it is also worth noting that parking is a constant problem at many sites and sending out contravention notices may be only one part of a wider solution. It’s quite likely that the scheme should consider adding no parking markings to the ground, additional signage or bollards to try and control parking behaviour.
This post appears in Strata News #499.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924