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

Our body corporate has shared water meters. Some units in our 8 lot scheme have been renovated since the build in 1970 and we’d like to arrange a plumbing audit on lots. Can the committee introduce a by-law stating that all tap ware in the lots must be of a certain standard and star rating?

Answer: The body corporate can inspect lots to assess whether the tap ware is of good condition – but cannot require owners to upgrade or improve better tap ware.

Maintenance obligations and standards are set out in the legislation and the by-laws cannot increase the standard imposed on owners. Any by-law that seeks to impose a higher standard would be contrary to section 180(1) of the BCCMA.

Relevantly, section 211(3) of the Standard Module provides:

The owner of a lot included in the scheme must maintain the lot in good condition.

Adjudicators have held that “good condition” does not mean current standards or a minimum star rating. It means that it is serving its purpose and not in disrepair.

The body corporate can inspect lots to assess whether the tap ware is of good condition – but cannot require owners to upgrade or improve better tap ware.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the March 2024 edition of The QLD Strata Magazine.

Question: We introduced a new by-law to allocate one car space per garage and 12 visitor parking bays. What voting is required? Do we need to register the by-law with the local council?

I have recently become chairperson of our body corporate committee. Our 24 lot complex was built in 1991. In 2017, through a special resolution at our AGM, all lot owners had the chance to vote to introduce a by-law to allocate one car park per lot within each garage and 12 visitor car parks.

A lot owner insists 100% of owners were required to agree with the change. I believe we only needed two-thirds of voters to agree.

The lot owner believes the by-law is invalid as it isn’t registered with our local council.

Is the by-law valid?

Answer: There are a few considerations at play here.

There are a few considerations at play here.

By-laws can be changed by special resolution (two-thirds of those who vote in favour and not more than 25% of owners or CSLEs voting against the motion). However, the body corporate cannot:

by special resolution – allocate car parks to lot owners’ for their exclusive use (this requires a resolution without dissent – which is no lot owners voting against the motion). This is then registered with the Titles Office; or

resolve itself to determine the number of visitor car parks (usually regulated by the council’s development approval conditions).

The body corporate should:

review the applicable council’s development approval conditions – to determine if its proposed car parking arrangements are permitted and, if not, seek council approval; and

assuming there are no issues with council – consider by resolution without dissent any allocation of car parks.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the August 2023 edition of The QLD Strata Magazine.

Question: Our by-laws stipulate bins are the responsibility of each lot. Due to space restrictions, each lot doesn’t have a dedicated bin, and no one person wishes to be responsible for community bins. Council hasn’t helped. What do we do?

We are residents of a small complex of eight units and have just lost the person who volunteered to manage our bins for the past eighteen years. Responsibility for the bins now falls to each resident, as stipulated in our standard by-laws.

Council is not happy as our bin enclosure only has a capacity for ten bins. We intend to house eight waste bins in the enclosure and accommodate eight recycle bins in the front patio of each unit, but Council is not happy with this arrangement either.

Do by-laws overrule Council edicts. Conversely, when Council approved the initial plan, would they have required the developer to either comply with the by-laws or build an enclosure big enough to house all sixteen bins? As it stands, we are stuck with a problem. No one is willing to manage shared bins, and we are not willing to pay someone to do the job. We only have six of each bin type, and only five of each type fit in the bin enclosure, so it is impossible to allocate a bin to each lot.

Answer: At the end of the day, the responsibility lies with the body corporate to appropriately manage common property.

It is not a case of by-laws trumping Council requirements or vice versa. At the end of the day, the responsibility lies with the body corporate to appropriately manage common property. Respectfully, it is not appropriate for the body corporate to say ‘it’s impossible’ (in my view, NOTHING is impossible in a strata situation), or ‘it’s too expensive’, or ‘it’s Council’s fault’, or ‘the developer should have done something’. It will be up to the committee to work with Council to look at solutions and communicate to owners about what their responsibility is.

That responsibility will more than likely be, as you have pointed out, via the by-laws: if a by-law requires an occupier to do something, then the onus is on both the occupier to comply, as well as the body corporate to enforce that by-law. So if the occupiers (owners) have to put bins out, then frankly, it’s too bad if they’d rather not. Also, common property or lots must not be used in a way that might cause a nuisance or hazard, and I think most people would accept that unmaintained or unemptied bins would have considerable potential to cause both things.

The body corporate may need to examine what other options it has with common property to house the bins. If it costs the body corporate money to do any of this, then I’m afraid there is no way around that: the body corporate cannot absolve itself of responsibility because it does not want to spend the money.

It might be time for the committee and owners to discuss these issues and any related matters. Otherwise, there’s potential for this problem to impact property values negatively.

This is general information only and not intended as legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #652.

Question: A tenant takes up a large proportion of the clothesline space every day, leaving clothes out well after they are dry. We’ve approached them gently about the matter, but nothing has changed.

We are a complex of 18 units. There are eight clotheslines for all residents. One tenant uses three clotheslines daily and leaves their washing on the lines from early until late. There excessive use restricts residents’ access to the clotheslines.

We have gently approached the tenant, requesting they remove their washing from the lines when it is dry but there has been no change. How should we approach this problem?

Answer: The body corporate might have to consider an amendment to by-laws to regulate washing line usage.

You may need to look at this from a few angles.

Presently, you’re looking at it from the angle of asking the tenant (known as an ‘occupier’ under Queensland strata legislation) to change what they do, and it seems you’ve tried doing that reasonably and informally – which is what I’d recommend. You can now continue on to do that more formally and, I guess, more assertively by making a request in writing.

To do that, though, you’d have to have a basis on which to ‘continue on’. That’s where your by-laws come into play. Do they adequately cater for this situation? If not, the body corporate might have to consider an amendment to by-laws to regulate washing line usage. Bear in mind that by-laws cannot discriminate between different types of occupiers, so whatever by-law gets considered in relation to washing line use, they will have to apply equally to everyone and not just this individual. You might also want to ask yourself if there’s a reason why this occupier has this seemingly very high washing demand. Do they have a very young family? Does their occupation require it? Understanding the motivation might get you closer to arriving at a solution that works for everyone.

The next angle: is the washing line situation adequate for the needs of the scheme? My rudimentary maths tells me that if the 18 lots had two occupiers each, on average, then that might be 36 people trying to use eight lines at any time, or a ratio of nearly five occupiers per washing line. Is that a good ratio? I can’t answer as I don’t know the scheme, so the committee might like to consider it and whether there is scope to add further lines onto what I assume is common property.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: In what circumstances would an Adjudicator order an occupier to “not permit “ something. More importantly, how do you “not permit” something if you wish to comply with the order?

The QLD BCCM Act provides that occupiers must “not permit” either interference with support, shelter, utility infrastructure or utility services, or the use of a lot or common property that causes a nuisance or hazard to others. (section 165 – section 167)

The Act’s default By-Laws in Schedule 4 provide that an occupier must “not permit” invitees either to park vehicles on common property or to bring animals onto the lot or common property.

And it is very common to see this admonishment in By-Laws prepared by strata lawyers for bodies corporate.

However, the Schedule 5 Adjudicators’ Orders do not mention “not permit”.

In what circumstances would an Adjudicator order an occupier to “not permit “ something. More importantly, how do you “not permit” something if you wish to comply with the order?

Answer: The words “not permit” is to extend the reach of the applicability of the by-law.

The words “not permit” is to extend the reach of the applicability of the by-law. For example, if a visitor was attending the scheme, it is the occupier’s responsibility to ensure that their visitors do not cause a nuisance. If the occupier permitted their visitor to cause a nuisance, the occupier would breach that by-law.

This is because a by-law cannot be enforced against a visitor.

Another example is that if an occupier is playing loud stereo music and causing a nuisance – it stops the occupier arguing that they are not personally causing the nuisance, their music player was.

It is also important to remember that the orders in schedule 5 of the Act are not exhaustive. They are examples only.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: We have a line that defines the BBQ area and pool area. Despite a sign stating “no glass in the pool area”, some residents do not comply. Is it unreasonable to ban glass entirely from the whole area?

We have a line that defines the BBQ area and pool area. The pool area has signage stating “no food, alcohol, glass or pets in the pool area”, but we are finding some residents are not abiding.

The Body Corporates’ concern is that an accident or deliberate act of glass breakage may occur. We know it is costly and inconvenient for all residents when a pool needs to be drained. So do we be proactive now and ban ALL glass, including wine and beer bottles, from the whole area?

How do we manage this without having an onsite manager 24/7?

Answer: Is this a ‘house rule’ or an actual by-law?

It is essential you clarify if that signage is a ‘house rule’ or an actual by-law. If it is a house rule, not part of your registered by-laws, then that is unenforceable and at best, an aspirational aim.

If it is part of a by-law, then the body corporate needs to enforce that by-law and there is a prescriptive process for that to occur. If you don’t have a by-law about this, then you really should be reviewing your by-laws and getting the right by-law drafted. Remember that a by-law that ‘bans’ something can often times be an invalid by-law, so you would need to be careful in your drafting. This is something a legal practitioner with specific strata expertise can assist with.

You can also consider enforcing the nuisance or hazard proceedings of the legislation in this situation. This landmark decision from late last year contemplates what might constitute a ‘hazard’ in a body corporate.

Before all that, you might want to think about communications. Is everyone aware of the situation and the potential costs, and other consequences, of glass in the pool? It might be an idea to write to all residents and then it is important to do so in the right (positive) way.

You also mention that someone might be deliberately causing breakage. Firstly, it’s a serious thing to allege someone is doing that sort of thing deliberately, so be careful about saying it. Secondly, regardless of whether it is deliberate or not, damage done by an owner (or occupier – the technical term for a ‘tenant’ under Qld body corporate legislation) to common property can be recovered from that person. You would need evidence of that.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #627.

Question: We’d like to have a gas BBQ on our balcony, however, the by-laws for our building do not permit gas BBQs. Other unit residents in our area have gas BBQs on their balcony. Why can’t we?

We are owner occupiers of a unit on the Sunshine Coast, Queensland. We would like to put a small gas BBQ on our balcony, however, we have been advised that the By-laws for our building do not permit gas BBQs.

I have been unable to locate anything in the QLD Fire Regulations which state that gas BBQs are not permitted in strata title units.

Further, we have observed other unit blocks in our area have gas BBQs on their balconies. Should we be allowed to install a gas BBQ on our balcony if the balcony forms part of our unit?

Answer: Depending on what your by-laws actually say, there will be different options for you to pursue at that point.

If you’ve been told – presumably by your committee or your body corporate manager – that your by-laws prohibit gas BBQs then you should be able to see the actual by-law where it says this.

Ideally you already have a copy of your by-laws. If you don’t, you can access them directly through the Registrar of Titles: Contact – Titles Queensland. Only those by-laws registered with the Registrar are the ones applicable to you and your scheme.

Depending on what your by-laws actually say, there will be different options for you to pursue at that point.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the December 2022 edition of The QLD Strata Magazine.

Question: Are children allowed to swim naked in the communal swimming pool in our complex?

Answer: If your concerns are on the grounds of ‘decency’ or ‘morality’, then I’m afraid neither of those things are for the body corporate to enforce.

Now I can honestly say, I’ve never been asked that question before…

If you’re asking purely from a body corporate perspective, it comes down to the by-laws for your building and whether they say anything about this situation. I would doubt it, but you never know. Otherwise, there are provisions under body corporate legislation for nuisance and hazard – do you think children swimming naked in the pool would cause either of those things? Then perhaps it might be an issue for the body corporate. You need to be clear what your issue is here. If the children are noisy and causing a nuisance, that’s one thing. If your concerns are on the grounds of ‘decency’ or ‘morality’, then I’m afraid neither of those things are for the body corporate to enforce.

I really think this is not a body corporate issue. Not everything that happens in a body corporate, is for the body corporate to address. If you have concerns, you should direct them to the children’s parents or guardians in the first instance. Be tactful when doing so. After that, you could consider contacting the Department of Child Safety if you really are concerned about the situation. If there is a suggestion that a criminal activity is occurring in relation to the children’s swimming – and I don’t know if you are suggesting that or not – then you would need to contact Police.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #615.

Question: I’m a caretaker owning a lot in a QLD body corporate complex. As a qualified real estate agent, can I conduct a real estate sales business from the onsite manager’s lot?

As a caretaker who owned a lot in the complex, I signed a caretaker agreement and letting agreement with the body corporate that allow me to carry out a caretaker and letting business from the manager’s lot.

I also hold a full real estate agent license that qualifies me for real estate sales. Can I conduct a real estate sales business from the onsite manager’s lot?

Answer: It will depend on what the actual by-law for the building says.

By-laws are the things that regulate the use of a lot. There is no black and white on this, but it will depend on what the actual by-law for the building says about what the management lot can be used for. So, unfortunately ‘it depends’.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #572.

Question: Can there be different rules about what can be placed on a balcony depending on how the balcony is positioned in the building?

The new CMS to be voted at the next AGM has some new clauses. Can there be different rules about what can be placed on a balcony depending on how the balcony is positioned in the building? In our building, we have interior pool facing balconies, and exterior-facing balconies.

Can a BBQ and a Washing line be both banned from the Internal facing balconies (pool facing) but can be stored and used on the other Balcony facing the back (external).

Can the type of furniture used on the balcony be specified as “appropriate and designed for outdoor use”

Can Body Corp conduct an Annual Balcony audit?

Answer: The body corporate can impose regulations that preserve the visual amenity of the building.

This comes down to whether the new rules are “reasonable”. Not only is there the overarching requirement for bodies corporate to act reasonably section 94 of the BCCMA), but by-laws must also be reasonable in the circumstances section 180 of the BCCMA).

Ordinarily however, the body corporate can impose regulations that preserve the visual amenity of the building. This is particularly relevant in schemes known for their architectural design or significance.

If the external balconies are not as readily viewed as the internal facing balconies, then such a restriction is capable of being reasonable. It would also appear reasonable that there is a requirement that outdoor furniture be appropriate and designed for outdoor use.

A body corporate can, and has obligations, to enforce by-laws. If this means regularly inspecting balconies to ensure that the by-laws are being complied with, then it can do so. This does not necessarily need to be on an annual basis though.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #567.

Question: We live in a rural body corporate estate with waterfront views. Is it possible to draft a by-law to limit the tree heights on some of the lots within the estate to preserve the views for all?

We live in a rural body corporate estate with waterfront views. The original building covenants for the estate included provisions for tree heights on private lots. We recently found out that because the developer’s building covenant is not registered within the CMS, the body corporate cannot take action with regards to that original covenant and therefore the tree heights which were stipulated in that covenant cannot be enforced.

The reason for the tree height restriction was to maintain the vista of the waterfront views for all owners. The current by-laws refer to those original covenants with regards to tree heights, but it appears that this clause is unenforceable due to the covenant not being a part of the CMS.

It is likely that the majority of owners would like to set a limit on tree heights for those waterfront properties in the estate. This would maintain the vista and views for all properties, including views from the common areas. Is it possible to draft a by-law that would in effect limit the tree heights on some of the lots within the estate to preserve the views for all?

Answer: Fortuitously, inside a community titles scheme, (almost) anything is possible with unanimous lot owner support.

In Queensland, trees can be very heavily regulated. Sometimes in rural settings, especially in riverine areas, there can be biodiversity protections arising under statute or a planning scheme. Added to that, local laws can also regulate tree removal. To deal with tree disputes with neighbours, we have the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Developers often put in place landscaping covenants for their benefit, but which don’t stack up after all of the lots have been sold. Inside a community titles scheme, landscaping codes can regulate trees, as can by-laws. All of that regulation creates a very difficult background for anyone trying to solve a tree problem.

Fortuitously, inside a community titles scheme, (almost) anything is possible with unanimous lot owner support. For example, a landscaping code can be inserted into the community management statement provided it is not contrary to any laws! Whether there is universal support for regulating trees (to protect views) or not, it is essential that this body corporate takes detailed and considered advice. That advice can lay the foundation for discussions with all owners to reach a solution acceptable to the whole community. If those discussions break down, then the Body Corporate will be better placed to decide whether to pursue a non-consensual resolution.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: Our by-laws state that unit car parks may be used only for parking of a registered motor vehicle. As there is no space for bicycles, is the committee required to provide a space?

Our Body Corporate bylaws state that each unit’s car parking area may be used only for the parking of a registered motor vehicle. They also state that “an owner or an occupier must not park stand or rest a bicycle on any part of the common property other than in an area specifically designated for the parking of bicycles”.

When our building was built about 20 years ago, no area was ever designated for bicycles and no storage facilities were provided for them. Is the committee obliged to provide a bicycle storage area? If so, as we do not have much area that could be set aside for bikes, would we have to provide one space per unit?

Answer: If there isn’t enough room for a space for a bike for everyone, the issue then becomes how you allocate them.

To me, that by-law is more about what you can use exclusive use spaces for. It says you cannot use them for bike storage. I don’t think it follows that the committee must supply storage areas for bikes, although if they could, that inevitably should lead to more occupier satisfaction.

If there isn’t enough room for a space for a bike for everyone, the issue then becomes how you allocate them. Most bodies corporate seem to operate on a first in best dressed basis.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: Is a By-Law prohibiting BBQs on a balcony legal? Our By-Laws expressly prohibit any type of BBQ using any type of fuel from being used in a balcony.

Answer: See if an electric BBQ will suffice.

By-laws are intended to regulate and not prohibit. The power to regulate does, however, in appropriate circumstances, extend to prohibition. Consider, for example, a ban on BBQs on balconies. Where the building is multi storey, there are multiple balconies constructed one above the other. Owned by different lot owners, the balconies are all made of (exposed) hardwood. Residents have a penchant for charcoal grills and the balconies are exposed to gusty seaside winds… Contrast that to a low rise residential complex, constructed wholly of brick, tiled concrete balconies, enclosed on two sides and with an all-weather (10 amp only) power point for an electric BBQ.

The by-law in question prohibits BBQs that use ‘fuel’. Practically, the first thing to do is to see if an electric BBQ will suffice! If not, then careful consideration would need to be given to the circumstances, including the text and effect of the by-law, to see if it was either

void as prohibitory or

oppressive or unreasonable, having regards to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in Strata News #550.

Question: Old bylaws in our QLD scheme prohibit the use of scooters. As electric scooters are used more as both mobility devices and commuters, how do we address this?

Our complex consists of free-standing homes with common area gardens and paths as well as a private road around the complex that is also Common property. The bylaws are quite old and do not permit the “use of skateboards, scooters, or roller blades on common property”. Bicycles can only be ridden in ingress or egress to an owners lot.

Some lot owners would like to use an electric scooter as a commuter and they have requested permission to ride it between their lot and the front gate. As there were no electric scooters around when the by-laws were written, is the by-law applicable or is this a grey area? In addition, what would happen if someone were to injure themselves while riding the scooter in the complex? If the Body Corporate were to give approval, what would be needed to ensure that the Body Corporate is not liable for any claims or accidents?

Also, what happens if the electric scooter is to be used as a “personal Mobility Device”? From my reading of this situation, in this instance the “scooter” fits these QLD Government guidelines. Can it be called a scooter and, therefore could it be argued that the by-laws do not pertain to the device?

As the popularity of these devices is exploding I would imagine that this is a matter that could become a big issue for Body Corporates in the future if they have by-laws about scooters.

Answer: If the by-law prohibits scooters, then there is no ability for the committee to permit their use. If the device isn’t a scooter…..

If the by-law prohibits scooters, then there is no ability for the committee to permit their use. That’s one of the perversities of by-law enforcement: technically, the committee must continue to enforce a by-law, even if it is in all likelihood invalid, right up until the point the by-law gets changed.

So, what to do now? Assuming the owner has requested permission and the committee deny it, then either the owner or committee can put a motion to a general meeting to have the by-law changed. If that motion were to fail, the owner would have the ability to challenge that decision in the Office of the Commissioner for Body Corporate and Community Management.

I can’t comment on your query re: liability for injury, you would need to seek qualified advice (e.g., legal advice, or advice from your insurance broker) about that. I’d suggest that advice would be essential if a new by-law was being contemplated and there was any thought of including in it a provision for the body corporate to have no responsibility in the event of an accident.

The golden rule: any by-law which prohibits, rather than regulates, is very likely to be invalid.

Personal Mobility Devices

If the device isn’t a scooter, then the committee could decide to give permission for its use because they are being asked to give permission on something for which there is no by-law.

That said, you need to take care here. You’ve framed this in terms of ‘your reading’ of it and that it ‘could be argued’. Which of course, means the opposite could be argued from someone else’s ‘reading’ of it. In other words, someone else on the committee may take a different view to yours and say they can’t give permission.

Which is where the need to seek qualified advice might be needed and really, where you are headed here, I think, is a review of the by-laws to get this one – and any others – up to date.

What you don’t mention is whether the device in question is related to a disability (and perhaps you don’t know that one way or the other). The committee would need to tread very carefully in making a decision about the use of a device needed to aid someone with a disability, as other laws might then come into play (e.g., human rights and disability laws).

Another fly in your ointment to consider: is the shared driveway in good condition? Has the committee been proactive in ensuring that it is even and free of potholes, cracks and other potential hazards? Because if not, and someone is going to use a device – mobility scooter, or otherwise – to traverse it, there would be every chance the body corporate would be held responsible for any damage incurred as a result (there is provision under body corporate legislation for this). That’s putting aside the injury (or worse) possibility which might arise.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the February 2022 edition of The QLD Strata Magazine.

Question: Should our body corporate have an “Engagement of Service Contractors” ByLaw to standardise the way we engage contracts?

We are updating our strata title By-Laws.

Can we include reference to the manner in which service contractors are retained by the BC? For instance, we would like to include a ByLaw specifying that service contractors must provide copies of WorkCover Currency Certificates and Public Liability insurances.

We would also wish our ByLaws to state that the BC must not retain any worker – Sole Trader or otherwise – who could possibly fall into the category of “employee” as opposed to “contractor”.

We have a relatively new Committee Resolution to this effect, but no actual ByLaw.

One source has suggested that it’s not necessary because it is an obvious legal requirement. Or is it? Others feel we don’t have adequate clarity in this regard and therefore could be vulnerable to future committees inadvertently plunging us into “employer” status.

Consequently, does an “Engagement of Service Contractors” ByLaw, cover these issues appropriately?

Answer: You might want to ask who that bylaw is governing and why it needs to be introduced.

All body corporates should always do what they can to make sure that contractors attending their site are fully insured, licensed and registered as required. If you don’t, you are placing your property at risk as uninsured or unqualified tradespeople are more likely to cause an accident or incident and costs for rectification of this could fall back onto the body corporate.

The easiest way to manage this is to ensure that body corporate works are booked through your body corporate managers. Most companies today have compliance systems in place that ensure they only engage suitable contractors. They may charge you a fee for this. Some companies include motions on their agendas noting that they will only book qualified and insured trades. You can ask your body corporate manager how they handle these matters.

The question here is whether you can have or need to have a by-law to enforce such a requirement. It’s fairly common to have clauses around this inserted into by-laws about how owners conduct renovations and renovations by-laws should be more common than they are, but the question seems to ask whether a more generic by-law can be instilled. I can’t think of a reason why not, but you might want to ask who it is governing that by-law and why it needs to be introduced. If it is to direct individual owners, then I can see the purpose – as per the above, a broader renovations by-law may be suitable. If it is for the Committee, then you might want to ask why that is required – the Committee have a duty of care to owners and should only be engaging suitable tradespeople as a default. What would you do if the committee breached the by-law and engaged contractors in contravention of its terms? A breach of by-law notice doesn’t seem an adequate method of resolution. As such, the by-law may act as a guide and possible barrier but it won’t necessarily future proof your scheme.

For the question around contractor vs employee, it seems fairly unlikely that the committee could be in a position where it could engage an employee, given that such a status would, at the least, require approval at a general meeting as any contract would almost certainly require approval at that level.

For reference, the ATO defines the difference between the two as being:

An employee works in your business and is part of your business. A contractor is running their own business.

Their website has a detailed list of the distinctions: Australian Government: Difference between employees and contractors

In most circumstances, the body corporate is simply engaging contractors – that is people who run their own business and provide a service to the body corporate. Some caretakers or facility managers may occupy a different position, although most operate under the umbrella of a company. If you came across a situation where you were unsure it is best to seek legal advice to confirm your understanding.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #534.

Question: Our By-laws are badly written and I’m having trouble interpreting them. How can we enforce the bylaws if we don’t understand them?

Our By-laws are badly written so I would appreciate some advice on the interpretation of:

‘(1) The hardstand area being part of the Common Property designated by the Body Corporate for storage purposes (“Hard Stand Area”) as per plan attached and marked “hardstand area” may only be used for storage of boats, • jet skis, trailers, caravans or motor homes (collectively referred to as an “Occupier’s Asset”) that belong to the Occupier of a Lot.’

Does this clause mean that you have to park your trailer on the Hardstand? Or can the trailer be parked in your driveway? I find it difficult to breach residents if I don’t fully understand the By-laws.

Answer: That fact that you are having trouble interpreting the by-law may tell you that it isn’t really fit for purpose.

It’s difficult to interpret the by-law without having full details of your site or at least reference to the plans. If you have one, you should check with your body corporate manager. If not you might want to review with the rest of the Committee.

Still, as you have I asked, I’ll forward an opinion that there is a ‘hardstand area’ at your site on which owners can store boats, jet-skis, trailers, caravans or motor homes. Other items may not be stored there. Hopefully, that hardstand area is clearly marked so that owners know where it is and what may be kept there.

The by-law doesn’t make any reference to where owners have to keep their trailers or whether they can store in their driveways. You would need to check through the rest of the by-laws to see if there are any prohibitions on this and advise owners on that basis. You need to review all of the by-laws to check the possibilities.

That fact that you are having trouble interpreting the by-law may tell you that it isn’t really fit for purpose. After all, if owners don’t understand what the law is saying how can they be expected to follow it? You could contact a strata solicitor and inquire about having a new by-law drafted to replace the existing one

Perhaps too, the fact that you are having some trouble with the interpretation may mean some greater assistance is required. This could come from other committee members or a body corporate manager. Certainly, it never hurts to ask and I can tell you that in body corporate management offices there is a great deal of collaboration between managers over questions like this to try and get the right interpretation.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #532.

Question: I’m in NSW and recently purchase a strata property in QLD. How vastly different are rules in each state? Why aren’t my details updated as the owner? I’ve got many questions.

I currently live in NSW and purchased an investment property in a strata complex in QLD at the end of 2020. I have been sent the latest 2021 strata report (prior to our 2021 AGM) dating 2020 with the previous owner or my lots name on the report. I was hoping since it is a brand new year and new estate development that the information would contain updated owners details? Does the report need to be amended to reflect current owners?

On another note, the strata management for the complex is based in NSW and the property is in QLD. The strata management didn’t offer zoom meetings during the Covid pandemic for the property. How are meetings supposed to be held regardless of covid if the management is in a completely different state?

Further, my strata levies payment receipt has a different company name on it to the name of the strata company that manages the complex.

This all seems strange. How vastly different are rules in each state? How can I learn more about the complex and where do I go to find out about these things? I am confused.

Answer: Take a deep breath and try to approach things bit by bit, seeking qualified assistance when you need to.

Firstly, welcome to the wonderful world of strata! It can indeed be a complex and tangled web. Your best bet is to do everything you can to not feel too overwhelmed by it. It takes many, many years for anyone to be a strata ‘expert’ (and even then, that expertise might be pretty limited).

With that in mind, I’ll go to your last queries first. Strata laws are different in each State and Territory. While there are some common, basic concepts (e.g., decisions are made as a group, distinctions between common and individual property), the legislation is very different in other areas.

In Queensland, you have the advantage of a thing called the Commissioner’s Office (I used to be the Commissioner). It’s the only Office of its type in the world, providing free strata information (not legal advice though) and dispute resolution. They have a wealth of information online, including a free online training course. Have a look: www.qld.gov.au/bodycorproate.

On the conduct of meetings, in Queensland, while it absolutely makes sense for meetings to be held electronically, it’s not compulsory and it remains an individual choice for each body corporate. That choice can be made by ordinary resolution (i.e. a simple majority) at a meeting of all owners. While I agree it might be challenging to have a Queensland property managed by a NSW strata firm, it’s certainly not impossible.

In relation to the points you make in your opening paragraph: I’m not clear on what you mean by a ‘report’. There are papers which go with an Annual General Meeting, is that possibly what you are referring to? In Queensland, there are legislated provisions about how and when a new owner’s details are to be supplied to the secretary (i.e., the strata manager in this case) and typically this is done as part of conveyancing and settlement. If your details aren’t in the body corporate roll, which is what you appear to be suggesting, then yes, that’s a problem and needs to be followed up. Having an up-to-date roll of all owners is an essential part of any body corporate.

My tip? Take a deep breath and try to approach things bit by bit, seeking qualified assistance when you need to.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #528.

Question: Can a Body Corporate committee establish a rule regarding the use of or the positioning of wood-fired BBQs in relation to fire safety?

Answer: it is possible to have by-laws regulating the use of BBQs and these can go so far as to prohibit their use altogether.

From a body corporate perspective, it is possible to have by-laws regulating the use of BBQs and these can go so far as to prohibit their use altogether. Your existing by-laws may already contain some clauses that give you a level of control – perhaps around damage to the common property, behaviour of invitees or storage of flammable materials. You can also look at the nuisance clause in the Act as presumably, the smoke drift is one of the big issues here.

Still, enforcing by-laws after the fact can be a laborious process. If you are having a regular problem, it may be better to look to your local council.

For them, the matter is covered by the Environmental Protection Act which states that it is illegal to cause a smoke nuisance.

Brisbane City Council has a good explanation of this on their website: Minimising smoke from backyard burning

They also list steps you can take in the event of a disturbance. These allow you to report issues to neighbours and council have the power to fine offenders if required: What to do when you are impacted by smoke from your neighbours

Other councils have similar restrictions. This is what the Gold Coast Council say: Smoke from bonfires or burning off

If you are reporting a problem to the council, it is important to have some evidence. If possible, take a photo or video of the issue. If that is difficult, then be sure to write down clear times and dates when the issue occurs as well as details of the disturbance caused. The more solid evidence you provide the easier it is for the council to follow up.

The question asks whether the body corporate can regulate the positioning of a BBQ. This may well depend on the specific circumstances of the property – if there are areas where BBQs can be held without disturbing others then perhaps the by-law could stipulate this. You would likely need to consult with a strata lawyer to determine what is possible.

If you think a BBQ is unsafe or a fire safety hazard in some way the issue could be approached differently as there may be an element of urgency in the action you need to undertake. Again, you need to gather your evidence and perhaps show this to a fire safety officer to get their opinion. QFES may need to be informed if the level of concern is high enough.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #524.

Question: When a body Corporate makes rules and bylaws for a strata complex, do those bylaws have to be registered with any official body?

Our Strata block is twenty three years old, and after some research, I have found our bylaws have never been registered with council or anyone else. They were simply made up by the committee of the time.

Consequently we have visitor car parks that don’t really exist, pets rules which ban everything (though one committee member has a cat), fences which have never been approved by the council, and who knows what else.

When the original body Corp makes the rules and bylaws for the complex, do those bylaws have to be registered with any official body?

Answer: Yes – all by-laws are registered with the Titles Office (not the council). I suspect if some searches of the Titles Office’s records are undertaken, a copy of the scheme’s registered by-laws can be obtained.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #519.

Question: Our complex has two plan formats, building and standard. The CMS states “maintenance and decoration of the lot is the owners responsibility”. Does this override the Building Format rules?

Answer: The simple answer is ‘no’.

We understand the reader’s question can be summarised as follows:

The reader’s Scheme has some lots which are registered under a Building Format Plan of subdivision (BFPs) and some lots registered under a Standard Format Plan of subdivision (SFPs).

A by-law within the Scheme’s Community Management Statement (CMS) provides that an owner is responsible for the maintenance and decoration of their lot. We presume that this by-law purports to apply to the BFPs, or silent on its application to BFPs and/or SFPs.

Does this by-law contradict the statutory obligations of bodies corporate insofar as BFPs are concerned?

The simple answer is ‘no’.

This by-law appears to be intended to reflect section 211(3) of the Standard Module / 201(3) of the Accommodation Module, which relevantly states:

“The owner of a lot included in the scheme must maintain the lot in good condition.”

However, in our respectful opinion, the wording of the quoted by-law is vague and ambiguous as to its scope and application. Accordingly, there would no doubt be several different interpretations of this by-law which might be formed by different owners and the Committee.

In our view, given the ambiguity of the by-law, whether the by-law contradicts the statutory obligations of bodies corporate (insofar as BFPs are concerned) will come down to how the by-law is interpreted and implemented by the Body Corporate.

In our opinion:

The by-law must be read in conjunction with the Body Corporate and Community Management Act Qld 1997 (the Act) and the relevant regulation module; and

As long as the interpretation being implemented is consistent with the Act and Module’s position on the maintenance and decoration in BFPs, the by-law would likely be valid and enforceable.

However, if the interpretation being implemented attempted to place maintenance obligations on owners of BFPs which are inconsistent with the Act or Module, then the by-law would be invalid insofar as the inconsistency extends (pursuant to section 180(1) of the Act).

We provide a further explanation as follows:

Valid interpretation of the by-law: By way of example, where an owner has failed to maintain the tiles within their lot, the Body Corporate could validly enforce the by-law to require the owner to undertake such maintenance, as floor coverings fall within the owner’s maintenance responsibility pursuant to section 211(3) of the Standard Module.

Invalid interpretation of the by-law: By way of example, where balcony balustrades in a BFP lot require maintenance, those works will likely fall within the Body Corporate’s responsibility (pursuant to section 180(2)(a)(i) of the Standard Module). If the Body Corporate attempted to enforce the quoted by-law to require the owner to undertake those balustrade works, there would be a good argument that the implementation of the by-law is invalid pursuant to section 180(1) of the Act, because it conflicts with section 180(2)(a)(i) of the Standard Module.

To summarise, the quoted by-law cannot override the statutory obligations of lots created under BFPs. The quoted by-law is, in our respectful opinion, vague and ambiguous and in turn, depending on the individual circumstances of its application, could be both validly and invalidly applied.

Jessica Cannon and Jessica Stanley Cannon + Co Law E: jessicacannon@cannonlaw.com.au P: (07)55 548 560

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: An occupant allows his visitors to stay overnight, sleeping in their cars in our outdoor visitor car parks. Sometimes these visitors also have pets.

An occupant allows his visitors to sleep overnight in their cars, in our outdoor visitor car parks. These people appear to be travellers. There is, of course, no mention of this in our parking by-laws so we are not quite sure of their rights to do so or our rights to disallow it.

These visitors also bring their dogs. The pet bylaw is the usual “do not bring animals onto the property without permission” one. This seems very, very hard to enforce even under normal circumstances. How does this work out in practice? Does the body corporate committee approve the pet in every instance? Or if the dog is quiet, on a lead, cleaned up after etc then we can’t/shouldn’t contest it?

Answer: It would appear that your building is in need of a review of its by-laws, especially if the problems you are having are not covered by by-laws.

Regarding the issues you raise, it would appear that your building is in need of a review of its by-laws, especially if the problems you are having are not covered by by-laws.

There also comes a point where, if someone is visiting on a regular basis, they might cease to be a visitor and start to become an occupier. That can be difficult to determine but there have certainly been adjudicators’ orders on this topic. Occupiers are bound by by-laws and if there’s a by-law about the keeping of animals, they’d be required to comply with the by-law. I’d also suggest contacting the local council about the situation to see if there are any local laws being breached by either the occupants in cars or cats freely roaming.

That said, I’m interested to know why the occupier is routinely having visitors sleep in their cars in visitor car parks. Does the occupant actually know the people and if so, why wouldn’t they allow the visitors to sleep on his couch? If you haven’t already done so, it might be worth having a discussion with the occupier and if they’re a tenant, also having a discussion with the landlord to let them know what is going on.

Putting by-laws aside there may also be a nuisance issue at play here in relation to the occupier. Refer to section 167 of the BCCM Act, which states that an occupier must not permit the use of common property in a way that causes a nuisance or hazard.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in the June 2021 edition of The QLD Strata Magazine.

Question: Is there a Resident’s Code of Conduct I could table through an AGM Motion for our Strata Body Corporate Scheme. Ideally this would encompass codes of conduct Resident to Resident and Resident to Body Corporate Committee.

Answer: If there is specific regulation required for the management of a complex it should be proposed as a by-law and voted on by owners whether to accept it.

Body Corporates are regulated under the terms of the legislation relevant to the scheme and the by-laws of that scheme. If there is specific regulation required for the management of a complex it should be proposed as a by-law and voted on by owners whether to accept it.

Otherwise, some schemes do have ‘House Rules’ or other unofficial codes and these can be useful as a guide for how to get the most out of living at a property. Maybe they set out some practical information about security or waste removal or give you an idea of how to contact the Committee. If they help people understand how to use the complex and get along with their neighbours, that can only be a good thing. Unfortunately, there will always be a few people who have trouble with this type of direction and in that instance it is important to remember that the house rules are just a guide and that the by-laws are the default tool for enforcement.

If you want to propose a set of house rules for your site then that sounds like a proactive way of communicating with owners. However, if you are considering listing them at a general meeting why wouldn’t they be proposed as by-laws and voted on accordingly? It may be better to simply have the committee review them and distribute to owners.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #463.

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: tgarsden@mahoneys.com.au 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.

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?

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 Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

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 Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

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 Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

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 Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

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 Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #179.

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