This article and Q&As are about bylaw enforcement in Queensland.
Table of Contents:
- 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: 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.
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?
- 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.
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.
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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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?
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