This article is about why Queensland strata laws are complex and constantly changing, and explains how specialist advice helps owners and committees avoid costly mistakes.
Three things to know about strata laws:
- Strata laws can appear straightforward, but exceptions abound
- BCCM rulings make strata law an ever-changing environment
- Specialist advice can prevent poor outcomes
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The strata law web
With more than 50,000 strata schemes in Queensland and probably verging on 600,000 strata lots, strata law affects a lot of Queenslanders all day, every day. Owner-occupiers, investors and tenants might have different motivations for being there, but they are all exposed to the strata law web.
Given the scale of the strata community, you would like to think that the strata laws themselves and then keeping on the right side of them would be as simple as possible, but that’s not always the reality.
I’ve sat at the Community Title Law Reform Working Group table for the last five years, which has been a really interesting personal experience. As a lawyer, you usually first see a draft bill, then it becomes law. It is a far more interesting thing seeing the work that goes into creating that draft bill behind the scenes. The conversations have been exclusively about the problems that people face in strata and coming up with legislative answers that address them – and it’s hard. It’s largely difficult because we are trying to legislate human behaviour, and that is next to impossible to do.
Once those laws are in place, the difficulty for people trying to weave their way through them is that there are plenty of rules that work 95% of the time, but there’s an exception for niche circumstances.
Strata rules and exceptions
Take the example of prohibitory by-laws.
By-laws (by their statutory definition) cannot be prohibitory in nature. A by-law that says ‘you can’t do XYZ’ is unlawful, but a by-law that says ‘you can do XYZ with the permission of the committee’ is fine – that is then a regulatory, as opposed to prohibitory, by-law. However, there is now a carve out for the rule of prohibitory by-laws: a body corporate can now prohibit smoking in common areas and the outdoor areas of a lot.
Similarly, by-laws cannot be oppressive or unreasonable. How that has been applied to pets has been relatively consistent for the last 20-odd years in numerous adjudication decisions, and the government has seen fit to now include this stance in the legislation. But this exists for pets only – they have not included any of the other more common ‘oppressive or unreasonable’ circumstances.
Also consider the heavily regulated rules around when you can and can’t nominate a proxy. Voting by proxy at general meeting is all good except on certain motions – like committee elections, or entry into (or variations of) management rights agreements. A committee member can appoint a proxy for a committee meeting, but the secretary or treasurer can only do that with the approval of the committee. It can be hard to keep track.
A final example: There is really no such thing as a conflict of interest with respect to voting at general meeting, except when it comes to a review of the caretaking remuneration under the statutory provisions where interests associated with the holder of the management rights cannot vote. At committee level there are very different conflict of interest provisions. We would get asked about advising on conflicts of interest in one of these forums every other day.
And that is the challenge that we face in strata. For every rule, there’s potentially a small exception or unique scenario.
Beyond that, new rulings that change these rules, or at least our perspective on them, are coming into play all the time. For example, we recently saw a change about whether CCTV is a body corporate record.
What this means for you
For anyone who complains that there are too many rules, that we’re living in a nanny state and this is all unnecessarily complicated, I absolutely get it.
It’s complicated for us too, and we live and breathe it on a daily basis.
But in response, I say to those people: Let’s then go and operate in an environment without the rules and see what happens. My guess is that it would become a post-apocalyptic, Thunderdome-like experience. Life would be unmanageable.
Navigating regulations, or at least understanding the way things should work, is better than not having those rules in place. But it certainly leads to difficulty with respect to compliance and understanding how best to manage a strata scheme.
If there is any confusion about what laws apply in your strata scenario, the best advice is to ask a specialist.
Frank Higginson Redchip Strata Law E: FrankH@redchip.com.au P: 07 3193 0500
This post appears in Strata News #778.
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Read next:
- NAT: Strata management in a changing environment: what’s ahead in 2026
- QLD: Q&A Bylaws, General Rules & The Act
- QLD: Q&A AGMs, Motions in Strata and the Obligation to Act
This article has been republished with permission from the author and first appeared on the Redchip Strata Law website.
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