Question: Tenants and friends of tenants are using the pool area as staging for commercial activity. We think this may be a misuse of our property as we do not wish the property to be advertised. Can this activity be restricted?
Answer: Through its by-laws, a body corporate can regulate the use and enjoyment of the common property.
Tenants are occupiers for the purposes of the Body Corporate and Community Management Act 1997. Occupiers have the same rights to use and enjoy the common property as lot owners do, subject to the by-laws.
Through its by-laws, a body corporate can regulate the use and enjoyment of the common property. That might include regulating commercial activities; for example making such activities subject to prior approval by the Body Corporate, before they can occur. To take an example, if the pool was being used for aqua aerobics classes, with paid participants, then the Body Corporate could make by-laws about the use of the pool and associated areas that were both more consistent with a residential (non-commercial) use, and prohibit commercial use without prior body corporate approval. A body corporate deciding whether to grant such approval would consider matters such as the impact of the commercial activity on the Body Corporate’s insurance, the impact of the activity on other lot owners and occupiers use of the space, and so on.
Outright bans should be avoided, as they are prone to being overturned as ‘prohibitory’ instead of ‘regulatory’ and also, for being unreasonable or manifestly oppressive. For example, a clumsy by-law prohibiting all commercial activity in the pool area would lead to absurd results such as stopping lot owners taking business calls in the pool area or catching up on work emails on their laptop while minding their kids.
As with any by-law, the starting point is to identify the problem, consider whether it is already dealt with elsewhere in the Act or regulation module, and only if it is not, then to draft the minimum by-law necessary to address the problem. The draft is then checked against the statutory limitations for by-laws and thought is given to practical matters and consequences arising, such as enforcing the by-law. After all of that is done, the by-law should be presented for approval at a general meeting, by special resolution.
To pass and be adopted, the proposed by-law will need good community support, which means involving lot owners in the issue, explaining the problem and getting their ‘buy in’ to the proposed solution.
Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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