Question: Can a body corporate amend its by-laws to define different resident types and restrict pool use accordingly?
The BCCM Act states that an occupier is “a resident owner or resident lessee of the lot, or someone else who lives on the lot”. Does the BCCM Act consider an occupier as anyone residing in a scheme lot at the time?
Our building has two identical indoor pools that are generally used by two types of residents.
- Short-term rental residents who are in holiday and/or party mode.
- Longer-term residents.
Longer-term residents prefer to have a quiet swim during their free time, which is frequently incompatible with short-term rental residents.
Is it acceptable to amend our by-laws to apply the following definitions:
- Owners: Registered owners of a scheme lot in part or whole.
- Occupiers: Residents covered by a minimum 3-month tenancy lease or residents who reside in a scheme lot on a consistent full-time or frequent basis.
- Guests: Short-term rental guests (such as Airbnb) and invitees of owners and occupiers.
Using these definitions, can we create a by-law calling for “owners and occupiers” to use the pool on level x and “guests” to use the pool on level y?
Answer: A by-law must not discriminate between types of occupiers. However…..
Your plan will likely fall foul of section 180(5) of the Body Corporate and Community Management Act 1997 (Qld). That section says – A by-law must not discriminate between types of occupiers.
An example follows the section, and the example relates to the by-laws concerning pool use. i.e. “A by-law can not prevent a tenant from using a pool on the common property.”
Under the Act, occupiers (usually) are:
- a resident owner or resident lessee of the lot, or someone else who lives on the lot; or
- a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot
So, it’s obvious residents (that is, someone who lives in a lot) are one type of ‘occupier’ and persons engaged in business are another type of ‘occupier’. Section 180(5) says you cannot discriminate between ‘types’ of occupiers, so you cannot use a by-law to discriminate between residents and persons engaged in business.
What the example in section 180(5) also tells us, however, is that Parliament intended that we could not discriminate within these two broader types of occupier either. A ‘tenant’ can be a residential or business tenant, but they can also be a long-term tenant (i.e. resident lessee) or a short-term tenant (i.e. someone else who lives in the lot).
So, we must read the definition of ‘occupier’ as containing many types of occupier, being:
- resident owner;
- resident lessee;
- someone else who lives in the lot;
- a person occupying a lot for business purposes;
- someone who works on the lot in carrying out a business from the lot
The by-law you propose would discriminate, for pool use, between resident owners/lessees on the one hand, and ‘someone who lives on the lot’ on the other (short-term tenants, even overnight stays!).
So, what to do? The trick is to have a by-law that discriminates, to get the job done, but not based on discriminating between types of occupiers. Consider:
- Zanzibar Mooloolaba [2015] QBCCMCmr 26 – the by-law allowed residential lot owners to use the pool, and commercial lot owners could not. Accordingly, the by-law differentiated between types of lots (i.e. residential vs commercial), rather than types of occupiers. As such, the by-law was valid and enforceable.
- Park Haven No. Two [2004] QBCCMCmr 628 – here, the by-law discriminated between owners/occupiers (with tenants included in the category of occupiers) and visitors or invitees. A visitor or invitee is not an occupier, because they don’t ‘live’ on the lot. That meant the by-law did not offend s180(5).
So, to achieve lawful discrimination, in your by-law, can you discriminate on some basis other than the type of occupier?
For example, are the short-stay lots “different” to the resident/long-stay lots in a meaningful way? By which I mean, are they missing key features that could be resided in long-term, such as a full kitchen. If so, then the Zanzibar solution may be available to you.
If you cannot achieve lawful discrimination, then my suggestion is to reframe the problem. Rather than the problem being short-term vs long-term occupiers, why not reframe it as noisy versus quiet use? That opens the door to solutions like dedicating one pool to ‘laps’ or other quiet use, and the other to general recreation OR quiet times and uses versus noisy times and uses in both pools.
Adjudicators don’t like unnecessary or unreasonable restrictions on ‘normal’ use of pools, so whatever you do, make sure to get legal advice from a strata expert, specific to your needs.
This post appears in the September 2025 edition of The QLD Strata Magazine
Michael Young
Bugden Allen
E: michael.young@bagl.com.au
P: 07 5406 1280
Our committee voted to approve the installation of sheds or storage cabinets in exclusive-use car spaces. However, our bylaw clearly states that these spaces are designated for car parking only. The committee chairperson claims that the bylaw is invalid. Has the chairperson overstepped his authority in this matter?
Re Chris Irons and StrataNews#757 of August 18th 2025, concerning retrospectivity of new by-laws.
Just moved into a new scheme, and the by-laws are silent re pets needing prior approval from the Cmttee. I understand this omission means the owners can have pets as of right. There are also few restrictions in these by-laws on the pets’s access to parts of the premises. This access is primarily managed by in-house Pet Protocols
Strata lawyers have examined the by-laws and concluded a number are unlawful, and have recommended a full review.
It has been suggested that the new by-laws should include a permissive provision for pets. Surely this doesn’t mean that the 20 or so owners who already have pets must then seek permission, subject to conditions, from the Committee. This of itself seems unreasonable to me.
Hi Ross
Thank you for your comment. The following response has ben provided by Chris Irons, Strata Solve:
Impossible to comment on scheme specifics and if there is a strata solicitor or solicitors providing advice on the subject, then it’s probably not appropriate for us to comment.
The Commissioner’s Office produce some very good content on the situation with keeping animals in a body corporate in Queensland.
At an AGM a new by law to be successful requiring a special resolution needs a yes vote from what percentage of lot owners or is it or is the percentage of yes votes received ?
A motion is passed by special resolution if:
• at least two-thirds of the votes cast are in favour of the motion
• the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme
• the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme.
All clauses must be satisfied for the motion to pass. If one fails the motion fails.
See the BCCM website for further details on special resolutions:
https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/committees-meetings/general-meetings/resolutions
What exactly is defined as a “monetary liability”. Can a new by-law state that covers of a specific specification and from a particular supplier be installed on new and existing a/c units on balconies or is that imposing a “monetary liability on owners?
Hi Birdman
This article should assist:
QLD: By-Law Series – Part 3 – Limitations Continued
Re “kiddies swimming naked in the communal pool ” per Chris IRONS #615 on 31 Oct 2022.
If I was a parent of one of the kiddies, the first thing I’d be doing is checking whether there are CCTV cameras recording my children in the pool. The big risk is not posed by those who happen to be pool-side at the time. It’s the CCTV coverage, normally out of sight and out of mind, which forms part of the body corporate records, is therefore easily accessible by all ‘interested persons’ for a nominal fee (and by committee members for no fee at all) , and then easily distributed on the web to all and sundry. And once it is out there, there is no pulling it back.
It is such a pity the ordinarily sensible and protective adults are so quick to approve installation of CCTV cameras into communal areas like pools and gyms without giving the matter much thought. Really, the CCTV cameras are there, not for security reasons, but mainly to monitor people’s behaviour. And this is why CCTV cameras are so favoured by resident caretakers etc, who prefer the convenience of managing the communal areas from the comfort of their office in front of the monitor than by actually getting out and making their presence felt
The following response has been provided by Chris Irons, Strata Solve:
Hi Ross, while I agree with the first part of what you are saying, I don’t agree with the second. How would the caretaker ‘make their presence felt’ in this scenario? Are they going to be ordering the child to put clothes on? Are they going to confront the child’s parent or guardian? Are they meant to tell anyone else at the pool to avert their eyes? I’m not sure any of these are within the standard duties of a caretaker and that is why I suggested in my original response that this issue is really not a body corporate problem to solve.
Hi,
A general by-laws in the Act says in section 8 Appearance of lot:
The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.,
I would like to find an answer, whether the BC can have some difference in its by-laws related to Appearance of lot as:
The owner or occupier of a lot must not, without the Body Corporate’s, and where appropriate, any other relevant government or semi-government or local authority department’s written consent, make a change to external appearance of the lot.
I suppose, there is missing a part of the general by-laws OF unless the change is minor and does not detract from the amenity of the lot and its surrounds., Is it ok when this part is not in by-laws of scheme? From my view, it is significant, because minor changes are not available. Do I am right?
The second issue is, that the general by laws has in s 4 Damage to lawns etc. sentence
1) The occupier of a lot must not, without the body corporate’s
written approval—
(a) damage a lawn, garden, tree, shrub, plant or flower on
the common property; or
(b) use a part of the common property as a garden.
This (b) is not in our by-laws, so resident’s pots, garden beds living in are on the common property .
It seams to me, that it is similar issue as the first one.
So can the BC withdraw some parts of general law and do not implement them into its by-laws?
Thank you.
Hi Helen
The by-laws in the Act only apply if no other by-laws have been registered for the scheme.
Accordingly, if there are by-laws included in the CMS (which can be different to those in the Act), the standard by-laws in the Act are not relevant.
Hi Todd,
Thank you for your response and explanation.
Do local council laws in Qld and regulations overule the body corp CMS.
we have lot owners constantly disregarding any Body corp breaches/regulations etc stating local council allows it and presides over the body corp.
what is the point in having a CMS
A by-law cannot be inconsistent with council’s requirements but just because council permits something taking place does not mean that the body corporate cannot regulate it through the by-laws.
A valid by-law can be enforced by the body corporate despite what the owner claims.
I have a few questions:
1. Our by-laws shows – Visitor’s car park and some conditions, however we do not have any regulated visitors car space for visitors on the car park. The sign by the gate shows, that visitors must park outside. I was told that is because of Developer nearly 20 years ago.. There are also a few disabilities signs on the car park, but they are not included in the by-laws, so people living at the scheme park where they want.
I believe, that the BC should solve this matter. Not sure how, therefore I am asking.
2. One of the tenant brought a bird (I have seen, I guess a parakeet) on the common property in the cage and it stays there covered by fabric all the time. The cage changes its place, however stays on the common property by the unit, not inside of the unit. There is the concern about mess that the bird produces, because by-laws says that that an owner or occupier of a lot shall not deposit , through or leave upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment ……… . There is no the committee approval of that bird. How to cope with a situation like that on the common property?
3. Feeding birds. Another occupiers weed birds on the birds feeder on the common property. I guess it may be similar issue like in number 2.
4. Garden beds with wooden legs and pots are on the laws front of some units. The laws have been damaged. By-laws says that occupiers of the lot do not damage the lawns……
5. Bottles, cans and plastic collection is on the common property and one occupier arranges to return them and funds go to the charity or social events of residents.. I guess, funds should be paid into administrative bank account. No approval by the committee for activities like that. The by-laws is silent about collection on the common property.
6. A fish tank is in the common room of the common property. A resident feeds fish. The BC pays electricity, owners or tenants for water. The by-laws is silent about fish.
The committee does not do anything and it leaves owners and occupiers to do what they want.
How to solve so many issues? Probably in a new by-laws?
Thank you for an opinion or advice.
Hi Helen
1. This article will assist: QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors!
For all other matters mentioned in your comment, this article should assist: QLD: The golden rules of bylaw enforcement + Q&As
Where do unit owners stand in QLD re what they have on their balcony. I understand that washing cannot be displayed if it can be seen from the street or a common area and don’t have a problem with that, but their are now questions been raised re different overhead fans, fridge, fairy lights displayed in plants ect but I guess my question is where is the line drawn given that the unit owner is responsible for the balcony area.
My husband and I own a townhouse in Queensland and are wondering if slamming of doors next door, is a complaint issue to the BC or is it a personal confrontation thing?
thankyou
regards Lucy
Hi Lucy
This response from Frank Higginson, Hynes Legal:
‘Discussion’ may be a better word than ‘confrontation’.
And also – riddle me this – if this was adjoining property owners, as opposed to a lot in a CTS, what could you do about the slamming of doors that you heard next door?
My Son has just bought a townhouse in a cluster of 16. He has not heard from the Body Corp and it worries me that he has no idea of the rules within the complex. There is no On site Management so it is difficult to know what he should do. The Levies are strange in that the Admin is High and the Sinking fund is very low ? since he has bought this place should he chase(which he will) or should the management company make sure he has all the info?
Hi Edward
We have received this response back from Todd Garsden, Hynes Legal:
My suggestion would be to call the strata manager and ask for the:
1. agenda of the most recent AGM. That will provide all the current financial information and the basis of calculating the levies from the budget.
2. The CMS – That will set out all the rules of the scheme.
If the owner has specific queries following from that the Commissioner’s website has a plethora of 101 information for owners and he can always subscribe to our Hynes Legal newsletters.
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