Question: A tenant in our small complex repeatedly leaves rubbish in the common area. Despite reports to the body corporate, no action has been taken. What can I do?
Answer: Is it possible the occupier does not understand their responsibilities?
This will likely be a situation where your by-laws are applicable. Most by-laws will contain a provision about rubbish and an occupier’s responsibility in relation to that. ‘Occupier’ is the term used under strata legislation to describe a tenant.
So, check your by-laws. If there is such a by-law, it is up to the committee to enforce it. Here is an excellent resource from the Commissioner’s Office about enforcement of by-laws: By-law enforcement applications – PD6
If there is not a by-law, the provisions about nuisance and hazard under the Body Corporate and Community Management Act 1997 will likely apply.
Either way, the committee (or you, if it comes to that) can pursue these options through the Commissioner’s Office.
Your first step in all this is to approach the occupier to ask them to stop. It is unclear if this has already happened or not. Is it possible the occupier does not understand their responsibilities? Or is there an issue with the bins or garbage disposal at the scheme contributing to the problem? These might also be useful questions to consider.
You can also reach out to the landlord or property manager to raise the concern with them and see if they can get the occupier to cease this action. Contrary to popular belief, it is not necessary to involve the property manager and the body corporate can (and should) take action directly against the occupier. Sometimes, though, involving these other parties can get results.
This is general information only and not legal advice.
This post appears in Strata News #705.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
Hello,
My body corporate committee has engaged a towing contractor to enforce a 6-hour limit in the apartment visitor car park, which they have placed signage stating. However, the applicable bylaw in the CMS states that the time limit is 12 hours.
Does the BC committee have the authority to make a variation or (‘local rule’ as they have called it) on a bylaw if it has been communicated on a sign, but not amended in the CMS? It could be understandable if there was an immediate threat to health or safety.
Thank you.
Hi Blair
No, the committee does not have the power to enforce a local rule (or house rule) that is inconsistent with the CMS.
Even the 12 hour limit in the CMS is going to be unenforceable.
Hi,
I understand that body corporates are required to act reasonably in enforcing by-laws. In this context, I am wondering if body corporates are always required to try informal discussion and warning before taking any formal action. Here I am talking about the normal by law breach, not the ‘urgent’ case. For example, if an owner is found to be parking on common property, would the body corporate be required to first try to informally discuss the issue with the owner/occupier or sent a warning letter before issuing a by-law contravention notices? Thank you
It’s always situational, so body corporates need to consider the best way to get their message across and act accordingly. Informal notices of a by-law breach are often preferred as a first step because they are seen as less confrontational, but if you want to go straight to issuing a contravention notice that is fine too – it’s what the notices exist for.
What is the time limit that a body corp can issue a breach notice. Can they issue for a change to a property that was 2 1/2 years ago?
I have responded to your question in the above article.
If a breach of a bylaw has no penalty and takes months to achieve an outcome at the commissioners office which can still be ignored what is the point of a committee issuing breach notices if all owners or tenants need to do is ignore them.
Hi Tiziana
The response provided by Michael above details the process to pursue repeat offenders.
Yeah, there is a process of enforcing by-laws.
However can the committee approve its motion at the committee meeting in order one owner restore the appearence his lot to match the appearence of other lots? No notice has been issued to him.
Hi,
The Committee can agree to issue a notice against an owner for breach of a by-law and if the owner doesn’t comply they can then proceed to have the matter resolved in a court. For a case like this I expect you would need to show that there is consistency across the other lots and that the owner’s changes had disrupted this.
Thanks,
Will
We live in a 63 townhouse complex in Qld.
Arriving home from holiday on a very windy day as we pulled up the drive we noted that our fence was visibly swaying in the wind.
Happy to do the work myself and not wanting to wait and risk more damage to the fence I naively thought I was actually solving a problem.
I dug a hole on the other side of the old concrete in order to gain more depth and then cemented a galvanised post anchor in place to attach the fence post to.
This resulted in what I thought was a very tidy secure finish to the fence.
Fast forward Body Corporate committee member arrived on my property .. In order to effect the repairs I had added an extra foot to my fence. And they want it removed. I will add that this fence borders a public walkway.
Question
My neighbour has laid pavers that come out 1.3metres on to common property and has then planted a garden which encompasses another 1.2 metres. This has been consented too.
Can they now turn down. my request? Feels like we are being targeted as the majority of houses have laid pavers on common property.
I am on the committee of our BC for our complex of 64 residences. We have various issues regarding parking. Although breach notices have been issued to the owner her defiance in not abiding by the notices have been received by email stating that she has no intention of moving the vehicles – her reply to the notices that went to all residents:
That’s our car and it’s staying there. When bodycorp pays for our back fence! Then they can ask about car parking.
Until then the carpark js are open slather . Bodycorp don’t own the roads.
The issue with the back fence was that her property and others along that area had no back fence in the first instance. She applied for the BC to pay for the fence, but our reply was that BC are only responsible for a half share of repairs to an existing fence. Hence she erected and paid for the fence but now uses that excuse to park up to 4 cars in all 4 spaces around that area near her unit.
She also parks her car across her garage which is full of mechanical parts, trailer and other paraphernalia. Along side her garage is a concrete pad and another vehicle is parked there also.
It is becoming an issue as up to 8 other units have no access to the 4 visitors parking spaces for their visitors.
I would appreciate some direction in relation to this as we have an AGM in a few months and I want to possibly propose an amendment to the By-Law for visitor parking that becomes more effective i.e possible towing of vehicles if not removed after a timeframe after breach notice issued. Is this a possible resolve?
Thanks
We are under the BUGTA act in our building and the Committee are refusing to enforce by laws and our strata management is not advising Committee of correct process.
What should we do?
Hi Caroline
The following response has been provided by Chris Irons, Hynes Legal:
You should be seeking legal advice about your options, if your efforts to date have not been fruitful. The process for enforcing a by-law under BUGTA is not the same as that which applies for a scheme under the BCCM Act.
It is not generally the role of a body corporate manager to be ‘advising’ a committee.
There are many common problems when the committee members are investors and the majority of occupiers are tenants. It is a high protective area for tenants.
Owners who would like to send Form 1 to the committee, have a problem to get a name of the tenant, who breaches the by-laws. How can owners get their name, when the roll is not fully accessible to see tenant’s name?
Hi Helen
This article will assist: QLD: Q&A Can I Access Body Corporate Records?
Hi Helen
The following response has been provided by Hayley Gath, MATHEWS HUNT LEGAL:
An owner is entitled to inspect and/or obtain a copy of records held by the Body Corporate (i.e. the Body Corporate roll) within 7 days after making a written request and paying the fee prescribed (s.205 of the Body Corporate and Community Management Act 1997).
However, the Body Corporate is only required to provide documents that exist at the time of a request. Accordingly, if the Body Corporate roll does not contain the tenant details for a lot, the Body Corporate is not obligated to obtain further tenancy information and need only provide the roll as at the time of the request.
While it is not ideal, a Form 1 may identify the respondent as the ‘Occupier’ of a certain lot. If the Committee decides to enforce the by-laws against the occupier, it will be up to the Committee to ensure that any contravention notice comes to the attention of the relevant occupier.
in regards to bylaw breaches , a form 1 has been sent to a committee , the committee maintains it was to hard to deal with, so they created a section in the authorizations register allowing historic encroachments on to common property.
my interpretation is they should have registered these encroachments on the CMS which they haven’t , this effects schedule A and B . what is the position of the CMS now that A and B are now compromised. to me it is 1 document and renders the rest of the CMS including Bylaws in a compromised position
Hi David
Hayley Gath, MATHEWS HUNT LEGAL has responded to your comment on this post: QLD: Q&A Authorising Common Property Changes or Improvements
We have an owner who has put up shutters without written aproval. This person is on the committee and is aware that they need to have approval for additional blind and awnings.
We have spoken to her as a committee at one of the meetings however, she refuses to remove them.
OUr body corp management company has said it would be difficult for us to make her remove them, but we are concerned that it will set a precedent for the future. Any suggestions.
Aslo can we ask her to resign from the committee as she doesnt represnt the committee in a good light.
Hi Vicki
We have received the following reply from Frank Higginson:
The standard you ignore is the standard you accept.
The committee has a statutory obligation to enforce by-laws. If they don’t owners can (by notice) require them to do so and then enforce that if the by-laws are not enforced.
It does all start though with whether the by-laws are lawful in the circumstances which is a threshold issue.
You can certainly ask her to resign, but there is no legal (as opposed to perhaps ethical) obligation on her to do so
What if the Body Corp are not complying with their own bylaws. An example would be where the bylaws prohibit signs on the front of the buildng but the Body Corp has two signs on the front of the building.
Hi Lyn
We have received the following reply back from Todd Garsden, Hynes Legal:
The by-laws only regulate owners and occupiers – they can’t really be enforced against the body corporate itself. The by-law shouldn’t prohibit though – it can only regulate allowing things (like signage) to occur with body corporate approval.
@reekylum
In WA, animals are not banned. However, if the animal causes problems or their are complaints, under the Strata Titles Act 1985 Schedule 2 by-laws (which apply to all strata companies unless it has registered additional by-laws) it states that:
12. Additional duties of proprietors, occupiers etc.
A proprietor, occupier or other resident shall not —
(a) use the lot that he owns, occupies or resides in for any purpose that may be illegal or injurious to the reputation of the building; or
(b) make undue noise in or about any lot or common property; or
(c) subject to section 42(15) of the Act, keep any animals on the lot that he owns, occupies or resides in or the common property after notice in that behalf given to him by the council.
section 42(15) of the Act refers to guide dogs which cannot be barred from being with their owner.
There are other sections of the Strata Titles and Residential Tenancies Acts which may impact on how comfortable and simple it is to take an animal visiting (cleaning up after, responsibility for visitors, etc), but in general, if the animal is well behaved and under control of it’s owner there’s no reason for complaint.
We own a unit in caloundra qld.
We have requested to take our dog there when we visit which at this stage is not often,however we will move in at some time.
The committee refuses point blank to allow this and has advised that it is one of their by-laws.
We have submitted twice to tem.
The chairman is a solicitor and gives the committee advise that they are within their rights to refuse.
I am on this committee also.
I personally have submitted copies of other units cases but says that it does not apply to our situation.
Ibelieve I am being treated unfairly .
Most units are rentals as is ours.
Can I get advice or are you able to refer me to someone.
Hi,
Does this rule apply to all states or does each state have their own version of this Golden Rule.
I would be interested in what the rules are in Western Australia.
An area within our complex is noted as exclusive use. Under BCCM it states that the owner is responsible for all maintenance of the area unless a By law states otherwise.
The Bylaws states the owner is responsible for the cleaning of the lot.
It does not state “only or ” as well as”. How would we read this?
Is the owner responsible for maintenance as well as cleaning or do we read it as cleaning only,
What about if the scheme has a Building Manager but that Building Manager does not take the initiative to report By-Law breaches to the Body Corporate Committee and refuses to even have gentle words with the offender?
The reason is most offenders are within the Building Managers letting pool and there seems to be a fear of losing tenants. The manager does not act on anything or report by-law breaches to the Committee to take action.
We have received the following reply back from Frank Higginson, Hynes Legal:
A common complaint, but let’s start with the manager’s role. They are not the body corporate policeperson. What their exact role is will depend on their caretaking agreement, but we first wrote about this here:-
Does a resident manager enforce by-laws?
A committee is the ONLY entity that can enforce by-laws. A manager’s role should be reporting breaches of them to the committee for actioning, but if the committee is aware of them there is no need for this. They already have the information they need to do what they are required to do under the BCCM Act.
As recently as today we had a resident manager client was threatened with being stabbed when doing exactly what most committees suggest they should – in terms of fronting people who breach by-laws. We have put that manager on the right path in terms of what their role is.
If it is a minor disturbance, use the breach process. If it is a major disturbance, call the police. There is not much middle ground. As much as this might not be palatable in resolving the issue to the satisfaction of owners, it is the way the BCCM Act works. If you want changes to that, get involved in the legislative review process.
Now to the second point.
Yes a resident manager is a caretaker but most are also a letting agent. In that context they are accountable to their letting owners, not the body corporate.
If tenants are breaching the by-laws, the body corporate can take action against the tenant but it is still up to the owner of the lot as to whether they want to do anything about the tenant in terms of issuing a breach notice under the terms of the lease for the property. In a market where tenants are thinner on the ground, an investor owner probably cares more about the rent they receive than a complaint from a committee they don’t know, about the behaviour of their tenant. They may well instruct the letting agent to do nothing, and if so, that is where it ends for the resident manager as letting agent. They, like us, act on clients instructions, without regard to how other parties involved in an issue may view those instructions.
Is it not incumbent upon the manager to ensure he administers the owners property in compliance with the RTA. If the tenant is breaching the by laws then the tenant is in conflict with the tenants committment to the RTA in terms of compliance. The General Tenancy Agreement has a clause whereby the tenant agrees to abide by fhe by laws. Part 2 para 22 (2). Why then is the manager precluded from acting on this clause, whether the owner is interested or not? Why is it that the Caretaking and Letting Agent is not responsible to the BC to police the by laws if that clause is in the agreement they signed and accepted? The Committee does not wander around looking for breaches. That is within the purview of the Caretaker. Certainly the Committee should act on known breaches but is mostly reliant on the manager doing the job he/she is paid for.
I live in a 4 bed detached home – strata title – Qld
My home backs on to a bush reserve so I have no one at the back of my garden.
I requested permission to put in a pool and was told that at some point the body corp has put in a by-law which has a blanket ban on Pools and spas. No-one can put one in. Except at some stage one of the houses did (apparently it was unlawful) the body corp decided to not take any action.
I would like to have the by-law repealed entirely what are my options? Is there a case of precedence?
I find it a very oppressive by-law particularly with Qld weather I feel I should be entitled to have a pool or spa in my own backyard.
Hi corinne10
We have received the following reply through from Todd Garsden – Hynes Legal:
There are really two issues at play here – whether or not the by-law is valid to start with and then how to remove or amend it.
Blanket bans in by-laws on something that would be lawful (like installing a pool) are invalid. So the committee would have difficulty in enforcing it. At best, it would be read down to needing committee approval to install a pool. Then the committee’s decision will come down to reasonableness of denying it.
To amend or remove a by-law a special resolution at general meeting is needed. All lot owners have a right to prepare and submit a motion to do that.
Thank you for your reply. I am waiting on a response from the body corp – may need to get a special meeting called?
Regards
Frank Higginson, Hynes Legal also supplied the following comment:
The key thing is to assess whether it is lawful, and if so then it must be enforced. If it is unlawful then it should be removed.
This is a very interesting article. I’m taking on my committee over what I believe is an oppressive and unreasonable by-law. Despite a number of other owners having breached the by-law and the committee being very, very well aware of this, they won’t issue contravention notices. Committee asked if I wanted them to issue contravention notices to the offending owners – I couldn’t say yes as this was a by-law I was fighting, however, I did point out it wasn’t up to me to decide if contravention notices should be issued, it was up to committee. I also pointed out there wasn’t much point in having a by-law if committee wouldn’t enforce it. The breaches of our by-law occurred quite a while ago, yet only recently committee advised me they still hadn’t decided if they were going to issue contravention notices. What’s to stop me going ahead and breaching the by-law also when there seems to be absolutely no consequence in doing so. I don’t want anyone to be issued a contravention notice, I just want our body corporate to repeal or amend an onerous by-law.
Hi msheeha7
We have received the following response back from Hynes Legal:
Your situation sounds like a very familiar one – we have acted for several lot owners whose Committees won’t enforce the by-laws, as well as other Committees that seek to enforce invalid by-laws. We’ve been able to negotiate a number of different solutions which can be tailored to each person’s individual circumstances.
There are a number of different ways that we could assist you, so if you’d like us to help, please feel free to give me a call on (07) 3193 0500 and I can detail these for you.
Kind regards
Will Macintosh