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.
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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.
Does a resident manager do the by-law enforcing?
If you are in a scheme that has a resident manager, the resident manager’s role should be reporting breaches of the by-laws to the committee. It is the committee alone that can enforce by-laws.
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 it 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.
Conclusion
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.
Read next:
- QLD: Q&A Doggy Doo Is Not Cleaned Up – Who Enforces Bylaws?
- QLD: Q&A Builder Manager Duties and Privacy
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This article has been republished with permission from the author and first appeared on the Hynes Legal website.
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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.
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.
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