This article about bylaw enforcement has been supplied by Hynes Legal.
Acquiescence. Such a beautiful word. But not when it comes to bylaw enforcement.
Enforcing by-laws is not an optional activity. Bylaws must be enforced, and the responsibility for their enforcement lies with the committee.
There are a few golden rules that all committees must follow when it comes to bylaw enforcement.
You must resolve to enforce by-laws
The by-law enforcement process in the Body Corporate and Community Management Act 1997 (BCCM Act) must be followed.
The BCCM Act sets out a specific procedure for enforcing by-laws. Regardless of your personal view on the effectiveness (or otherwise) of these procedures, the committee must follow them. Deviate from the procedural requirements at your peril!
Firstly, when the committee (acting reasonably) forms the view that a by-law is being contravened, it must resolve to serve a by-law contravention notice. The operative word here being the committee must resolve to serve the contravention notice. This means that the committee has to make a decision, either at a properly convened committee meeting or by flying minute, to serve the contravention notice on the offending person.
Of course, all the usual rules about notice of committee meetings, minutes, etc. will apply.
If there is no decision backing up the serving of a contravention notice, an adjudicator or conciliator is likely to make you start the whole process again.
The BCCM Act lists a number of matters that must be detailed in a by-law contravention notice. Again, if you fail to include any of the matters required by the Act, your notice will likely be deemed invalid. Preparing contravention notices requires careful drafting and particular care should be taken to ensure the notice is not later struck down by an adjudicator.
Is the resident manager the bylaw enforcer?
That’s not to say the manager (or a committee member) won’t have a gentle word with the offender about the rules before anything further happens, but the bylaw enforcement action we are talking about is far more formal than that.
If the resident manager is acting as letting agent for the owner of the lot whose occupant is offending the manager may have rights under the tenancy agreement with respect to that tenant. That will be on the owner’s instructions, though – not the body corporate’s.
If the offender is not a lot in the manager’s letting pool (being an outside agent or an owner occupier), then the manager has no rights whatsoever with respect to that occupant.
Contraventions must be acted on whilst they are current
The purpose of by-laws is to ensure a sense of order exists throughout the scheme and to make sure owners and occupiers act in a civilised way, mindful of the needs of others and the body corporate more broadly.
Accordingly, if someone is contravening a by-law and the committee knows about it, they have a responsibility to other owners and occupiers to try and address the issue.
The importance of acting quickly is also important from the point of view of the Commissioner’s Office. If a bylaw enforcement matter makes its way to the Commissioner’s Office, they will expect the dispute to be a current dispute. If the committee doesn’t enforce by-laws whilst the contravention is current, the body corporate is likely to lose its right to complain about that particular by-law contravention.
Unlawful by-laws should not be enforced
The by-laws for a scheme are contained in the community management statement (CMS). When a CMS is registered, no one at the relevant government department combs through the by-laws to determine whether they are all lawful. Our experience is that every scheme has at least one (but usually a lot more) unlawful by-laws.
The requirement to enforce by-laws does not apply to unlawful by-laws because this would be considered unreasonable and in contravention of the BCCM Act. If you try and enforce an unlawful by-law, the Commissioner’s Office will come down harshly and likely make comments that the committee has acted unreasonably – not a good look if you are going for re-election!
For example, by-laws that amount to a blanket prohibition on pets or that allow towing of vehicles will be considered unlawful. In some circumstances, towing has been permitted but only when the committee has followed the by-law enforcement process exactly according the requirements of the legislation and has received an adjudicator’s order saying that the vehicle can be towed.
So don’t go charging in regardless with enforcing every by-law. Make sure it is valid first. If you want help with that, click here to send us your CMS for an obligation free quote.
We have assisted hundreds of bodies corporate in reviewing and enforcing their by-laws. We also regularly act for lot owners defending allegations of breaches of by-laws. We have drafted contravention notices, advised on the requirements of the legislation and the validity of by-laws and have made applications through the Commissioner’s Office.
If you require assistance, please let us know. It is important that all steps taken by a committee are correct and reasonable. You don’t want to receive an adjudicator’s decision and for it to be the first time you realise there was a mistake in the process as it is quite possible you’ll have to start the process all over again.
This post appears in Strata News #111.
Question: One unit owner does not clean up after their dog. It is part of the bylaws. Who is responsible for bylaw enforcement?
- About 18 months ago person buys ground floor unit with no external space allocated to the lot
- After moving in and without any consultation with the Body Corporate, owner announces they have a large dog
- An amendment to the By-Law to allow the owner to keep the dog is drafted and presented at our AGM 2016 and gets up 4-1. With conditions attached including the dog not to be unsupervised on common property and any “accidents” to be cleaned up immediately.
- This is not happening. The dog comes and goes from the unit at will unattended and does his business anywhere on the grassed common.
- It stays there for hours and sometimes days whilst gathering extra deposits
- Taking this up initially with our Body Corporate Managers, the unit owner accused me of lying and exaggerating so I sadly was forced to gather photographic evidence
- We have spoken to the owner face to face several times and despite agreeing to clean up… nothing happens
- Body Corporate Managers, the chairman and other lot owners appear to ignore the situation and bury their heads in the sand.
- Body Corporate Managers say they can write a letter to the unit, at a cost!
- It is not a nice experience having lunch or drinks on the balcony and lumps of fly blown doggy do greet the eye
It’s part of the by-laws! I am happy with unit life and am happy to abide by the by-laws.
Is there anything we can do that we have not already done?
Who is responsible for the enforcement of the bylaws?
Anything you may suggest would be greatly appreciated.
Answer: A body corporate has a statutory obligation to enforce by-laws. The committee must carry out bylaw enforcement.
A body corporate has a statutory obligation to enforce by-laws. The committee must do that.
Without adopting a scorched earth policy in terms of issuing a breach first up, it should formally communicate with the owner about what is required and then step up if needed via the formal by-law enforcement process and if need be, go to the extent of getting an order from the Commissioner’s Office about the conduct.
- QLD: Q&A Doggy Doo Is Not Cleaned Up – Who Enforces Bylaws?
- QLD: Q&A Builder Manager Duties and Privacy
This article has been republished with permission from the author and first appeared on the Hynes Legal website.
The photo associated with this post has been supplied by Flickr: zoetnet – balcony.
Have a question about bylaw enforcement or something to add to the article? Leave a comment below.