QLD: The golden rules of bylaw enforcement + Q&As

This article and Q&As are about bylaw enforcement in Queensland.

Table of Contents:

• QUESTION: What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?
• QUESTION: How do we escalate a bylaw breach notice if the behaviour continually occurs.
• QUESTION: Our Committee would like to enforce by-laws that ban skateboards, scooters, etc in the complex. We have teenagers using our speed humps as jumps for their skateboards. Please advise, what can I do as an owner?
• QUESTION: Our caretaker will not enforce bylaw breaches. As a lot owner, can I issue a Form 1 to start breach proceedings?
• QUESTION: Our committee is struggling to enforce bylaws. Lot owners believe the committee has no right to have a say in what they do with the property. Are our bylaws enforceable?
• QUESTION: Without any notice, the Body Corporate used bolt cutters to remove bikes etc we had stored under the building. Can we be compensated for these items?
• QUESTION: What can be done when the Body Corporate Committee doesn’t enforce by-laws/regulations?
• QUESTION: I have bought into a Scheme, and the seller had a fence that breaches the by-laws. I haven’t rectified the breach. Am I now breaching the by-laws?
• QUESTION: I’ve received a letter from Body Corporate about breaching visitor parking. It contains a photo obviously taken by another resident. How is this a lawful way to enforce the bylaws?
• QUESTION: I have been issued a BCCM Form 1 & BCCM Form 10 at the same time for the same “breach” without any prior notices in any form. Is this common bylaw enforcement practice?
• QUESTION: When a committee has been to conciliation over breach of bylaws and still allows the breach to occur, what steps can residents take to ensure ByLaws are enforced?
• QUESTION: One unit owner does not clean up after their dog. It is part of the bylaws. Who is responsible for bylaw enforcement?

Question: What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?

My Body Corporate is a standard module. My Neighbour breached a by-law. I issued a form 1 to the Body Corporate and the Body Corporate followed up a form 10 and 11 to the accused with 14 days to comply. 14 days passed, and the accused continued with the by-law breach.

1 month on from the issuing of the contravention notices the accused was still breaching the by law.

The Body Corporate committee held a committee meeting with this item on the agenda. At the meeting, the committee acknowledged the breach was continuing and stated they were not prepared to spend Body Corporate money to progress the case through BCCM.

What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?

Answer: Legislation requires that the body corporate must (not may) enforce its by-laws.

While I appreciate the body corporate’s desire to save money – after all, that is money that you will foot, as part of your levies – frankly it doesn’t have a choice. Legislation requires that the body corporate must (not may) enforce its by-laws. In this case, it appears the committee has agreed there is evidence of the breach, so it must enforce.

Given it has apparently decided not to, you have two options. You can either dispute their decision to not enforce, or you can enforce the breach directly against the accused. Both options will end up in my former Office (The Commissioner’s Office). On the latter option, there are a few steps you firstly need to undertake (e.g., you must try and resolve the matter with them directly).

You need to be aware also that it will take several (many) months for the outcome to be decided. With that in mind, and what I’ve said above about cost and process, I think it is not a bad idea to reflect upon the by-law breach and the impact it is having upon you. In other words: is it going to be worth your effort? Sorry to put it in such pessimistic terms, I am only trying to be practical.

If one of your aims is to hold the body corporate committee accountable for not pursuing this, then the best you could hope for would be that if this goes to adjudication, the adjudicator makes an adverse finding against the committee for their (apparent) inaction, as happened in the recent, high-profile smoking decision in Queensland. That said, there’s no punishment, fine, sanction or penalty which applies, other than the fact that adverse finding is on the public record. I’m not sure how that would help you though.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

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

Question: How do we escalate a bylaw breach notice if the behaviour continually occurs.

We have noisy and abusive neighbours. Our Body Corporate Committee states that if a bylaw is continuously breached and a notice is sent to the offending party, they have 7 days to rectify their behaviour. If they reoffend after 7 days, corrective action has to start again from the beginning.

Therefore, in our building, the same bylaw can be breached by the same party numerous times. As long as the behaviour occurs outside of the 7 day period, no further action other than an initial warning can be taken by the committee. Is this correct?

Answer: If a future contravention notice is used, then the neighbour can be prosecuted if they breach the by-law again, within 3 months of receipt of the future contravention notice.

No, it’s not correct. Two types of by-law breach are addressed by the Act in Queensland. Enforcing by-laws involves issuing a by-law contravention notice to the offender/s. There are two types of notice, one for each type of breach.

The first is a continuing contravention notice and the body corporate issues that notice when it reasonably believes that an occupier is contravening a provision of the by-laws and the circumstances of the breach make it likely that the contravention will continue. A good example is a by-law that requires body corporate approval for external improvements. If a lot owner erects a pergola without approval, then it is likely the breach of by-laws will continue.

Contrast this to the other type of notice, being a future contravention notice. A body corporate gives one of those when it reasonably believes that an occupier has contravened a provision of the by-laws and the circumstances of the breach make it likely that the contravention will be repeated. A good example is a by-law that prohibits parking on common property, except in a designated space. If a lot owner regularly parks their car in breach of the by-law, the breach does not happen continuously, it happens repeatedly.

So, as you can see, using a continuous contravention notice to address a noisy and abusive neighbour, is like trying to hammer in a nail with a screwdriver – it’s the wrong tool for the job. If a future contravention notice is used, then the neighbour can be prosecuted if they breach the by-law again, within 3 months of receipt of the future contravention notice.

As to compliance with a continuing contravention notice, and the 7 day furphy, let’s assume that the noisy and abusive neighbour has rigged up a loudspeaker which plays loud rock music, interspersed with a voiceover spouting abuse at the other lot owners. After being asked to turn it off, the neighbour refuses. In that instance the body corporate would issue a continuous contravention notice. Within that notice the Body Corporate has to provide a period of time for the neighbour to comply with the by-laws, which must be reasonable in the circumstances. In this case, that would not be 7 days! I would think that an hour would be more than sufficient to enable the neighbour to turn off the loudspeaker. If the neighbour turned it off, waited 5 minutes and turned it back on, then the body corporate would move to issue a future contravention notice. If the music is turned back on after that notice was issued, then the body corporate could prosecute the neighbour in the local magistrates court, seeking a fine of up to $2757 (for an individual), plus costs.

Michael Kleinschmidt
Stratum Legal
E: [email protected]
P: 07 5406 1282

This post appears in Strata News #549.

Question: Our Committee would like to enforce by-laws that ban skateboards, scooters, etc in the complex. We have teenagers using our speed humps as jumps for their skateboards. Please advise, what can I do as an owner?

Answer: By-laws are meant to regulate rather than prohibit

Interesting question. I can honestly say I’ve not been asked this before.

I can see you are coming from a place of good intentions. That said, by-laws are meant to regulate rather than prohibit and the general rule of thumb is that a by-law that purports to outright ban something, would be found to be invalid if challenged in my former Office (Commissioner).

You’ve asked what you can do as an owner, although you’ve also said ‘our committee’. As an owner, or as part of the committee, you can put a motion to a general meeting putting up your suggested by-law for approval. I’d urge you to consider the wisdom of that, in light of what I’ve said above, as it might end up being a big waste of your time (and money).

If you are determined to proceed down that path, I’d suggest you start asking around other owners to see if they’d support it as well. No point in putting up a motion that is doomed to fail. And I’d also suggest seeking some legal advice about it to ensure wording is the way it should be to maximise chances of passing.

Your other option is to consider whether existing by-laws are already being breached, or whether nuisance provisions might be being breached. The committee is responsible for enforcement in either case. You’d need evidence, particularly if you initiated any formal action, and that might be in the form of a log of dates, times and what was occurring.

Might I suggest your better approach is to discuss either with the offending parties or their parents? That might be a far more cost-effective and timely path to follow.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

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

Question: Our caretaker will not enforce bylaw breaches. As a lot owner, can I issue a Form 1 to start breach proceedings?

Our caretaker refuses to notify residents they are parking on common property without committee permission. He refuses to passing offenders information onto the committee for action. The committee wont take any action against the caretaker.

As an owner, can I lodge an official complaint with the Body Corporate Commission or do I submit a form 1 to the committee seeking some action? What would be the correct procedure?

Answer: There are a number of steps body corporates can take to enforce by-laws starting with informal discussions or warnings advising of the breach.

The caretaker not assisting may be frustrating, but their role here is something of a red herring as enforcement of by-laws does not require any interaction with that office.

There are a number of steps body corporates can take to enforce by-laws starting with informal discussions or warnings advising of the breach.

After that, the first formal step is for a by-law contravention notice to be issued. The decision to do this can be made by the Committee or the Body Corporate at a general meeting. A continuing contravention notice can subsequently be issued if the matter is not resolved.

If a person does not comply with the notices, the Body Corporate can then start proceedings in a magistrates court or apply for conciliation to enforce the by-law.

For individual owners seeking to enforce the by-laws they can send a notice of the contravention, a Form 1, to the Body Corporate asking that the Body Corporate send a contravention notice to the person they believe is breaching the by-laws. If the Body Corporate doesn’t tell the owner or occupier who is making the complaint within 14 days, the complainant can apply for conciliation against the person they believe is breaching the by-laws.

The government website has a detailed explanation of the steps and options available to owners in these situations: Queensland Government: Enforcing by-laws

By-law breach notice forms can be found at: Queensland Government: Body corporate by-laws

Owners are advised to collate as much clear evidence as possible when making a by-law contravention submission. This could include photos and audio files as appropriate.

Going back to the caretaker you may want to check their contract carefully to check their scope of works and what action they are supposed to take when the committee directs them to. Their position may be technically correct, but perhaps there is another technically correct position that could lead to them taking more action.

As this issue involves parking it is also worth noting that parking is a constant problem at many sites and sending out contravention notices may be only one part of a wider solution. It’s quite likely that the scheme should consider adding no parking markings to the ground, additional signage or bollards to try and control parking behaviour.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #499.

Question: Our committee is struggling to enforce bylaws. Lot owners believe the committee has no right to have a say in what they do with the property. Are our bylaws enforceable?

Our body corporate is a standard format plan so lot owners are responsible for the maintenance and insurance costs of the building. Our body corporate bylaw for lot improvements is pretty standard:

An Owner or Occupier shall not alter the external appearance, finish or colour of the building on the Lot nor add to, extend or cover the Lot in any way without the prior written approval of the Body Corporate.

The committee is struggling with lot owners not getting written approval or not waiting for approval and commencing work as soon as the application has gone in. The latest and loudest opinion of lot owners is telling the committee we have no right to have a say in what they do with the property.

As a committee, we invest quite a bit of our own time into researching and trying to make decisions in the interest of all owners, not just the applicant. Also, we have a statutory obligation to uphold the bylaw but is becoming very disheartening when our efforts are wasted.

Is our bylaw simply unenforceable and if so should we remove it at the next general meeting?

Answer: If a by-law has been properly passed at a general meeting and recorded with the Titles Office then not only is it in force, the committee must – not maybe, possibly or optionally – enforce it.

There is a world of difference between a properly decided-upon motion and a group of owners articulating what they think their rights are. If a by-law has been properly passed at a general meeting and recorded with the Titles Office then not only is it in force, the committee must – not maybe, possibly or optionally – enforce it. Your efforts at enforcing by-laws should never be ‘wasted’: remember, by-enforcement is not dependent on the alleged offending party accepting the breach. If you’re not entirely sure if the correct enforcement process has been followed (and to be fair, it is quite a prescriptive process), you may want to seek some legal advice.

If owners feel a by-law is unreasonable, then they have the option to have that challenged in my former Office. Up until that point though, the by-law remains in place and to be blunt, I’m afraid that group of owners is wrong: they are part of a community and the body corporate, via its committee, absolutely has the right to regulate what they do with their property, to the extent it has an impact on other owners or the common property.

Putting that to one side for a moment, do you know when was the last time you had your by-laws reviewed? If it’s been a while, or you have some genuine concerns that this by-law (or any other) is problematic, it might be prudent to consider getting them reviewed.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #477.

Question: Without any notice, the Body Corporate used bolt cutters to remove bikes etc we had stored under the building. Can we be compensated for these items?

I had some items (bikes etc) chained up under the building where I rent a unit. The Body Corporate used bolt cutters to remove our items without any notice. They claim the items were taken to the dump.

What rights do we have as tenants? Are we within our rights to be compensated for our forcibly removed or stolen equipment?

Answer: If items are left on common property in contravention of the Scheme’s by-laws, there is a process to follow.

The correct process for the Body Corporate to follow, if items are being left on common property in contravention of the Scheme’s by-laws, is for the Body Corporate to:

• issue a by-law contravention notice to the relevant occupier requesting that they remove the item from the common property;
• if the item is not removed from the common property by the occupier, to file a conciliation application with the Commissioner’s Office regarding the contravention; and
• if the matter is not resolved at conciliation, file an adjudication application with the Commissioner’s Office seeking orders that the item be removed from the common property.

While the Commissioner’s Office has exclusive jurisdiction regarding disputes between a Body Corporate and an occupier, it arguably does not have the power to order the Body Corporate to compensate you for the cost of the lost equipment. Accordingly, any legal action in that regard may need to be pursued separately through QCAT or court (depending on the amount sought).

Jessica Stanley
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #470.

Question: What can be done when the Body Corporate Committee doesn’t enforce by-laws/regulations?

What can be done when the Body Corporate Committee doesn’t enforce by-laws/regulations?

They have been extremely “selective” – eg, enforcing some owners to comply with complex conditions for internal renovations, but totally ignoring another owner who didn’t even apply for permission to do similar renovations.

Also, there have been different Conditions of Approval from the Body Corporate Committee, for the same work to be done, by different owners.

Answer: The committee has an obligation to enforce by-laws, but only when it is reasonable to do so.

The committee has an obligation to enforce by-laws, but only when it is reasonable to do so.

The committee cannot selectively choose to enforce by-law contraventions just because of who the occupier is, but can do so if there is insufficient evidence or it would be unreasonable for another reason.

If someone is concerned about another person’s by-law contravention notice it might be useful to send the committee a BCCM Form 1 to formally request the by-laws to be enforced.

If the by-laws still aren’t enforced after sending the BCCM Form 1, it then allows the concerned person to enforce the by-laws directly.

Similarly, there is no requirement for conditions of approval to be the same – but they need to be reasonable in each individual circumstance.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #388.

Question: I have bought into a Scheme, and the seller had a fence that breaches the by-laws. I haven’t rectified the breach. Am I now breaching the by-laws?

Answer: If the fence was erected by the previous owner in breach of the by-laws and you have not rectified the breach, then you are in breach of the by-laws.

If the fence was erected by the previous owner in breach of the by-laws and you have not rectified the breach, then you are in breach of the by-laws.

Even if the previous owner told you the fence is approved and you relied on that, you still have to rectify the breach if the fence was in fact not approved. Although, you may have remedies against the seller.

The Body Corporate has a duty to enforce the scheme by-laws and as the current owner of the lot, the Body Corporate may issue a continuing contravention notice to you. If it does, you will need to obtain the necessary approval, or if that can’t be achieved, remove the fence.

For any future purchase we recommend undertaking sufficient due diligence enquiries, including liaising with the Body Corporate directly, to determine whether approval for improvements has been granted. This is much safe than relying on what the previous owner tells you!

Jeremy Brown
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #384.

Question: I’ve received a letter from Body Corporate about breaching visitor parking. It contains a photo obviously taken by another resident. How is this a lawful way to enforce the bylaws?

I am a tenant in a Qld townhouse complex. I recently received a letter from the body corporate reporting one of my visitors for parking on common property behind my garage door. The letter contained a photo of my visitor’s vehicle shown parked outside my garage with licence plate visible stating date & time recorded. It also stated it was noted that the visitor car park near me was available at the time.

On this particular occasion a guest had popped in for 5 mins to collect an item & had pulled up outside the garage due to rainy weather. Whilst I appreciate the need for the body corporate to notify me of this parking breach, what disturbs me is that it appears the photo was taken by another resident in the complex who likes to takes matters into their own hands to monitor my guests comings and goings and report any breaches of parking to the body corporate.

My unit is in the direct line of sight to this other resident’s unit, to which I feel I am being unfairly monitored as opposed to the remaining units outside this person’s visual reach.

What are my rights & guests rights in this instance as to our privacy of having my visitor’s details noted & photographed? As far as I am aware this photo was not taken via video surveillance within the complex as there is no signage to declare such cameras in use on site.

Answer: This might appear over vigilant but it is lawful. If the body corporate doesn’t deal with issues like this when they happen it turns into a free for all.

This might appear over vigilant but it is lawful.

The car was parked outside the parameters of the by-laws. The body corporate has a statutory obligation to enforce by-laws.

At least it has happened this way than an abusive knock on the door or a by-law breach notice. I have seen a lot worse ways to handle issues like this.

I think if you put yourself in the body corporate’s shoes, what happens if they don’t deal with issues like this when they happen? It turns into a free for all.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #320.

Question: I have been issued a BCCM Form 1 & BCCM Form 10 at the same time for the same “breach” without any prior notices in any form. Is this common bylaw enforcement practice?

Answer: Form 1 doesn’t need to be sent with Form 10 but there is no issue in doing so.

BCCM Form 1 – Notice to body corporate of contravention

BCCM Form 10 – Continuing contravention notice

The BCCM Form 1 is the complaint from the complaining owner to the body corporate and the BCCM Form 10 is the actual breach notice from the body corporate to the offending owner.

Form 1 doesn’t need to be sent with Form 10 but there is no issue in doing so.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #272.

Question: When a committee has been to conciliation over breach of bylaws and still allows the breach to occur, what steps can residents take to ensure ByLaws are enforced?

We have been told by a resident that the Bylaws cannot be enforced, but every piece of information I have looked says different. What is the correct information?

Also, what happens when a committee has been to conciliation over a breach of bylaws and then still allows the breach to go ahead? What steps can residents take to ensure ByLaws are enforced by the committee?

Answer: By-laws can definitely be enforced as long as they are lawful.

By-laws can definitely be enforced as long as they are lawful. There are a number of restrictions on what by-laws can say though.

Residents can ensure by-laws are appropriately enforced by:

• Sending a form 1 to the committee with sufficient evidence.




• If the committee doesn’t take action to enforce the by-law, the resident can then:
  
  
  • Enforce the by-law themselves in the Commissioner’s Office; or

  
  

  • Seek orders that the committee enforces the by-law in the Commissioner’s Office.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #256.

Question: One unit owner does not clean up after their dog. It is part of the bylaws. Who is responsible for bylaw enforcement?

1. About 18 months ago person buys ground floor unit with no external space allocated to the lot
2. After moving in and without any consultation with the Body Corporate, owner announces they have a large dog
3. 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.
4. This is not happening. The dog comes and goes from the unit at will unattended and does his business anywhere on the grassed common.
5. It stays there for hours and sometimes days whilst gathering extra deposits
6. 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
7. We have spoken to the owner face to face several times and despite agreeing to clean up… nothing happens
8. Body Corporate Managers, the chairman and other lot owners appear to ignore the situation and bury their heads in the sand.
9. Body Corporate Managers say they can write a letter to the unit, at a cost!
10. 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.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

Have a question about bylaw enforcement in QLD or something to add to the article? Leave a comment below.

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Read next:

• QLD: Q&A Appearance of Lot. What constitutes a breach?
• QLD: Q&A Duties of a Building Manager & Providing Relevant Information

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