QLD: Q&A Bylaws, General Rules & The Act

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Lot owners from QLD are wondering about Queensland bylaws and general rules. Frank Higginson & Chris Irons from Hynes Legal and Todd Garsden from Mahoneys provide the following responses.

Jump directly to the QUESTION you are after:

• QUESTION: In our scheme, there are no by-laws relating to use of the pool or BBQ facilities. The by-law says to refer to the signage in the area. Is this enough?
• QUESTION: Is a “Policy” the same as a House Rule and therefore non-enforceable? Can residents ignore this Policy even if the motion is passed at the AGM?
• QUESTION: Do the bylaws need necessarily reflect the BCCM laws or can they be things that the majority of the community agree on? Do they have to be drawn up by a Lawyer or agreed to by the Commissioner?
• QUESTION: Our bylaws state we are responsible for maintaining and painting the complete exterior. Which takes precedent? By-laws or registered Standard Format Plan?
• QUESTION: Quite a lot of LookUpStrata’s references say check the by-laws to see what they say. Should your advice state to check the by-laws and any previously passed motions for that body corporate?
• QUESTION: Can you advise if the local Queensland ByLaws override the general rules?

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Question: In our scheme, there are no by-laws relating to use of the pool or BBQ facilities. The by-law says to refer to the signage in the area. Is this enough?

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?

Answer: Signage cannot replace a by-law.

You are correct – signage cannot replace a by-law. Any enforceable rules must be included in the registered by-laws.

The sign would be considered an unenforceable house rule. In The Grove [2018] QBCCMCmr 581 the adjudicator relevantly provided:

[59] However, such rules are not by-laws, as they have not been adopted at a general meeting and recorded in the CMS. Moreover, a body corporate cannot delegate its by-law making power to its committee. As such, house rules are not binding or enforceable even if they are contemplated in a by-law. They are simply advisory.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #415.

Question: Is a “Policy” the same as a House Rule and therefore non-enforceable? Can residents ignore this Policy even if the motion is passed at the AGM?

I understand that House Rules have no standing in Body Corporate enforcement and this is clearly stated in the Justice Training unit 5 at the bottom of page 1.

The committee is putting an ordinary motion at the AGM to validate an FM/VOC which will restrict the use of common property rights but are not going to make it a by-law or change the CMS. The content of the motion is termed a “Policy” and not a by-law.

1. Is a “Policy” (except an insurance policy) the same as a House Rule and therefore non-enforceable? and if it is where, if anywhere, can I find that?
2. Can residents ignore this Policy even if the motion is passed at the AGM?

Answer: Yes, a ‘policy’ is the same as a ‘house rule’, i.e., it’s not legally enforceable.

On (1), yes, a ‘policy’ is the same as a ‘house rule’, i.e., it’s not legally enforceable. You can find that by (a) looking at the Act to see that there is zero reference to scheme policies in this context or (b) looking up past adjudicators’ orders to see what they say on house rules or policies.

On (2), see my response for (1). The policy can’t be enforced so yes, residents are free to ignore it because it has no legal standing. So in other words, it’s a waste of time and its only real impact would be in being ‘aspirational’. I think we all know how those sorts of thinks can end up.

Moreover, restricting common property rights in and of itself sounds risky. The Act provides that there shouldn’t be discrimination between owners and occupiers and so if that’s what the motion is aiming to do – which it sounds like it is – then that’s a problem. One of several in this situation, it seems.

Your committee can go along on this path if they like and might even be successful in seeing their motion passed. Really the motion should not be put up at all. What should you do? Well it’s up to you, but I would be urging the committee to reconsider and then if they don’t and the motion passes, then you can challenge it through the Commissioner’s Office.

Chris Irons
E: [email protected]
P: 07 3193 0500
W: Hynes Legal

This post appears in Strata News #401.

Question: Do the bylaws need necessarily reflect the BCCM laws or can they be things that the majority of the community agree on? Do they have to be drawn up by a Lawyer or agreed to by the Commissioner?

Can the by-laws in a complex be reviewed and potentially changed to reflect the community and the years since they were first put in place?

Do the bylaws need necessarily reflect the BCCM laws or can they be things that the majority of the community agree on?

Do they have to be drawn up by a Lawyer or agreed to by the Commissioner? What process is required? Are there any areas that cannot be changed?

Answer: Legislation provides for a range of limitations on what can and can’t be put into a by-law.

By-laws can be reviewed at any time. While you don’t need a lawyer to review and draft them, it’s highly recommended you do so to avoid including unlawful by-laws which then can’t be enforced and which may also put the body corporate to more expense to change at a later date anyway. Legislation provides for a range of limitations on what can and can’t be put into a by-law.

The by-laws don’t take effect until a new Community Management Statement (CMS) is registered with the Registrar of Titles. For the CMS to be registered, a motion needs to be put to a general meeting of all owners to agree to its registration and that motion would need to be by special resolution.

While the Commissioner’s approval isn’t required, an adjudicator in the Commissioner’s Office can declare a by-law invalid and order – via a legally-binding order – that a new CMS be registered.

Whether you’re on the committee or an owner, you should be thinking about getting some good, qualified advice prior to doing any work on reviewing or drafting new by-laws and then getting them considered at a general meeting.

Chris Irons
E: [email protected]
P: 07 3193 0500
W: Hynes Legal

This post appears in Strata News #386.

Question: Our bylaws state we are responsible for maintaining and painting the complete exterior. Which takes precedent? By-laws or registered Standard Format Plan?

We are registered as a Standard Format Strata (50 townhouses in 6 blocks, built-in 1993) yet our BY laws (original) state we are responsible for maintaining and painting the complete exterior including the roof.

Which takes precedent? By-laws or registered Standard Format Plan?

Answer: ‘If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency’

Section 180(1) of the Body Corporate and Community Management Act 1997 states that ‘If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency’.

So the legislation takes precedence. Another way of looking at it is that the legislation provides for maintenance responsibilities and the body corporate cannot contract out of those responsibilities, even if it has a by-law saying it can.

Chris Irons
E: [email protected]
P: 07 3193 0500
W: Hynes Legal

This post appears in Strata News #382.

Question: Quite a lot of LookUpStrata’s references say check the by-laws to see what they say. Should your advice state to check the by-laws and any previously passed motions for that body corporate?

Quite a lot of LookUpStrata’s references say check the by-laws to see what they say.

I have just received a response from QLD BCCM that a general meeting motion can remove the rights and privileges of owners but that a change to the CMS by-laws is not required. In this case, I was enquiring about a bylaw stating residents cannot use the front door of the building to move in\out household goods.

If this is correct should your advice state to check the by-laws and any previously passed motions for that body corporate?

Answer: There is no need to go back through previous resolutions to see if there is anything hidden.

The by-laws have to be a consolidated set of rules for the scheme that fits within the limits imposed by the BCCM Act. If a change to by-laws is not registered within 3 months of the date of the meeting held to consider that change, then they are not valid. So in answer to the second question – there is no need to go back through previous resolutions to see if there is anything hidden.

I am not quite sure that a by-law could prohibit the movement of goods through the front door. Why should there be that limitation? Why couldn’t I bring a new lamp or chair in through the front door if it got dropped off at the front of the building?

Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au

This post appears in Strata News #358.

Question: Can you advise if the local Queensland ByLaws override the general rules?

Can you advise if the local Queensland ByLaws override the general rules?

This is a Queensland small module block of 4 townhouses under Building Format Plan (BFP). The generic rules say that the perimeter fence and balustrades within the Exclusive Use areas are maintained &/or replaced by the Body Corporate. However, the ByLaws state:

“Each proprietor and occupier enjoying for time to time the exclusive use of their respective courtyard areas shall keep and maintain that part of the common property to which each proprietor and occupiers entitled to use exclusively, clean and tidy and generally in good order, maintain and repair to the same extent as the duties that are otherwise imposed upon the Body Corporate pursuant to the provisions of the Act and Regulations mode.”

Our Body Corporate Managers have indicated that the Body Corporate would pay for repairs, quoting the fence is a perimeter fence and as such should be repaired from Body Corporate funds.

Your guidance would be appreciated.

Answer: A by-law cannot override the Act.

A by-law cannot override the Act. However, there isn’t necessarily a conflict here as the Act provides a general position but then allows the by-law to provide otherwise (yes it is a bit circular).

Where these ones get to is that it depends on whether the item needing repair is primarily for the benefit of the lot with the exclusive use area. If it is, then it will be the owner’s responsibility. If it isn’t (and is more for the benefit of the scheme) it will be the body corporate’s responsibility.

It does depend on the specific circumstances but in most cases, the perimeter fence will fall to the body corporate.

Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au

This post appears in Strata News #179.

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