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