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Enforcing body corporate by-laws transcript

Everybody welcome to enforcing body corporate by-laws run by the Office of the Commissioner for Body Corporate and Community Management.

Topics

Today we’re going to go through the topics

Overview of by-laws

By-laws can only provide for the administration and management of common property and assets. They can regulate the use and enjoyment of lots, common property, and utility infrastructure, assets (including easements), and services and amenities supplied by the body corporate. So this information is directly from section 169 of the Act. Please note this section says by-laws may regulate, they may not prohibit.

Validity of by-laws

What makes a by-law valid? Section 180 of the Act provides the limitations and conditions for the validity of by-laws.

  • A by-law cannot be inconsistent with the BCCM Act or any other Act. This includes the regulation modules under the BCCM Act.
  • A by-law cannot discriminate between types of occupiers.
    • A typical example of this is trying to record by-laws that prohibit tenants from using areas of common property, such as gyms or pools, while still allowing owners to use it.
    • Another example is restricting a scheme to 55 years old or over only. Unless it is registered as a retirement village, a scheme’s by-law cannot restrict the age of owners or occupiers.
  • If a lot can be used for residential use, the by-law cannot restrict the type of residential use.
    • A common example is where a scheme is registered with the local council as a short-term holiday letting scheme. A by-law that restricts residential use to owner-occupier or long term tenant only could potentially be invalid because of the council planning provisions.
    • Another example is running a home business. The local council determines whether a business can be run in a residential lot. It is not the Body Corporate and Community Management Act that determines that. A by-law that prevents an occupier from continuing to use a lot for mainly residential use, even though they are using a small percentage for a home business approved by the local council, may be invalid.
  • A by-law cannot prevent a mortgage or sale of a lot
    • For example it cannot prevent an owner from selling to a younger person or a family with children.
  • A by-law cannot impose a monetary liability.
    • A common example is a by-law which states the body corporate will impose a bond for people moving in or out of the scheme. This type of by-law could also be deemed invalid.
  • A by-law cannot be oppressive or unreasonable having regard to the interests of all owners and occupiers of the scheme.
    • A typical examples of this one is a no-pets by-laws or one that restricts a dog’s weight to 10kg. These types of by-laws have been ruled invalid by adjudicators in the BCCM office and the Queensland Civil and Administrative Tribunal (QCAT) on the basis of being oppressive and unreasonable.

By-laws for your scheme

A brief overview for how to find the by-laws that apply for your scheme. For all schemes, if there are by-laws on the Community Management Statement, or CMS, they will be registered and enforceable. Those by-laws on the CMS override any early registered by-laws.

For any schemes created between October 1980 and July 1997, if there’s nothing registered on that CMS you will need to check what by-laws might be registered at Titles Queensland and the Schedule 3 from the previous act, the Building Units and Group Titles Act (BUGTA) 1980, will probably apply plus any potential amendments, additions, or deletions, to the by-laws that have been registered at Titles Queensland.

For schemes created before October 1980 it’s a little more complicated. If there’s nothing recorded on the CMS then the by-laws will probably be Schedule 3 from BUGTA plus any other registered by-laws at Titles Queensland plus any pre-1980 by-laws that have been registered or retained under the transitional amendments from the previous pre-1980 Acts through to BUGTA.

For more detailed information about finding your by-laws please read our website page ‘what by-laws apply’. You can just google “what by-laws apply BCCM Queensland” and you’ll find that page.

You can get a copy of the CMS, or search for other registered by-laws for older schemes, at Titles Queensland.

Enforcing by-laws

You need to know the correct by-laws for your scheme so that you can enforce them. If you don’t know them, you can’t enforce them. To be enforceable, a by-law must be registered on the CMS or directly under the title at Titles Queensland. Even if a by-law is suspected of being invalid, it does not prevent the body corporate from carrying out initial steps to enforce the by-laws – for example giving contravention notices and potentially coming to conciliation. However, if you progress to adjudication, an adjudicator may not be able to make an order to enforce and invalid by-law.

If you’re enforcing by-laws please read Practice Direction 6. It’s on our website. It contains a clear flowchart outlining the steps that you need to follow for enforcing by-laws – whether you’re the body corporate, an owner, or an occupier.

Owner enforcing by-laws

How does an owner or occupier start the by-law enforcement process? The owner or occupier (we call tenants ‘occupiers’) must give the body corporate the BCCM Form 1 which is a notice to the body corporate of a by-law contravention. They have to use it because it is a prescribed form which means you must use it if you want to enforce further.

The body corporate then has 14 days to advise the complainant (the person who gave the Form 1) if they are issuing a contravention notice.

The important point is the occupiers (tenants) can enforce the by-laws using the Form 1 which they can give directly to the body corporate. Please understand that occupiers do not need to go through their real estate agent to contact the body corporate. They have the right to contact the body corporate directly, just as the body corporate can contact them directly (including issuing a contravention notice).

Body corporate ignoring BCCM Form 1

If an owner or occupier has given a Form 1 to the body corporate and there has been no response after 14 days (remember that the body corporate must tell the complainant that they’ve issued the contravention notice within the 14 days) the owner or occupier can lodge a conciliation application against either:

  • the body corporate itself for not enforcing the by-laws; or
  • the owner or occupier who is actually breaching the by-law if they have attempted direct self-resolution with the offending owner or occupier. In other words, the complainant must have written directly to the person breaching the by-law about the breach as well as using the Form 1.

Remember to keep copies of any Form 1s you issue, and any other correspondence with the person breaching the by-law or the body corporate. All those documents have to be submitted with your conciliation application.

Body corporate enforcing by-laws

The legislation says that if the body corporate reasonably believes that there is a by-law contravention occurring, the body corporate must enforce the by-laws. The committee, or a general meeting, must make a decision to issue a contravention notice, and a decision to lodge a conciliation application if required to enforce the by-laws.

The body corporate can give a written or verbal reminder first if they want, but there is no requirement to give any notice before issuing a contravention notice. The committee must issue a contravention notice before they can enforce further through the BCCM office or through the magistrates court.

They can use our BCCM Form 10 Notice of a continuing contravention of a body corporate by-law or our BCCM Form 11 Notice regarding likely future contravention of a body corporate by-law. Please note Forms 10 and 11 are ‘office forms’ only. This means they are not required to be used. We have developed them to ensure all the information required under sections 182 and 83 of the Act is included in the notice. The body corporate can issue a letter as their contravention notice as long as it contains the same information as listed in the forms. In other words, the body corporate must enforce the by-laws and may use Form 10 or 11 to do so, or their own notice containing the same information.

Continuing contravention

The BCCM Form 10 – continuing contravention notice – is used in situations where the contravention is continuing. For example:

  • someone has built a pergola without approval;
  • pets are there without approval;
  • a lot has been painted purple; or
  • continuous parking on common property

Please also note that if your scheme is registered under the Specified Two-Lot Schemes Module you will need to use BCCM Form 27 instead of BCCM Form 10.

Future contravention

The BCCM Form 11 – future contravention notice – is used in situations where a breach has occurred repeatedly and is likely to occur again in the future. For example:

  • parties happening every weekend and you know they’re going to happen again;
  • an occupier repeatedly parking in a visitor’s carpark but not continuously;
  • an approved pet causing a nuisance such as barking

Please also note that if your scheme is registered under the Specified Two-Lot Schemes Module you will need to use BCCM Form 28 instead of BCCM Form 11.

Skipping notices

There are circumstances where the contravention notices can be skipped. Under section 186 of the Act an owner or occupier can skip the issuing of a Form 1, or the body corporate can skip issuing a contravention notice, only if there are special circumstances where the contravention is:

  • likely to cause
    • injury to persons; or
    • serious damage to property; or
  • is a risk to the health or safety of persons; or
  • is causing a serious nuisance to persons; or
  • for another reason, gives rise to an emergency

Note that these special circumstances relate to urgent matters only where the party is applying for an interim order of an adjudicator. Where there is no urgency and no special circumstances, the normal enforcement processes apply.

Offender not complying

The body corporate can consider 2 options.

  1. The body corporate can start proceedings in the Magistrates Court for the court to impose a monetary penalty. The committee can authorise court proceedings to enforce by-laws under section 312 of the Act, and section 42 of the Standard Module. Note that this is subject to the committee spending limit and funding in the budget for legal expenses.
  2. Alternatively, the body corporate can apply for conciliation. The committee can authorise dispute resolution processes with the BCCM under the same sections. Evidence of authorisation to lodge, as well as evidence of authorisation to issue the contravention notices, must be included with an application to the BCCM.

Animal by-laws

We’re going to move onto animal by-laws. Permissive by-laws, prohibitive by-laws, and assistance animals are the main topics that we get the most questions about.

Permissive by-laws

Under a permissive by-law an animal is usually allowed on the scheme land with the written permissive of the body corporate. Some permissive by-laws so not actually require any permission to be given at all, especially older schemes with the old animal by-law.

With a permissive by-law an owner/occupier still needs to comply with other by-laws such as noise and the nuisance provision in the Act – section 167.

An owner, occupier, prospective purchaser, and prospective occupier all need to seek permission if the by-law requires it.

The body corporate and the committee must act reasonably when making a decision (sections 94 and 100 of the Act). Determining whether or not a decision is reasonable is not easy. There is no mechanical test or formula that can be applied. The question is not whether the decision was correct or preferably but whether it is reasonably objective. What is reasonable is a question of fact based on all relevant matters in the circumstances of each case.

The body corporate approving an animal under a permissive by-law is not a precedent. Each animal must be considered on its own merits on a case by case basis. A hypothetical concern for many people seems to be that approving one animal will cause the scheme to be overrun with animals. That is not correct, especially if the majority of owners currently in the scheme do not necessarily want an animal.

Previous animal approvals do not automatically transfer to a new animal. For example a case of an elderly dog passing away – an owner or occupier must seek approval for a new animal.

There are numerous adjudicators’ orders that state that the body corporate cannot charge an application fee to an owner or an occupier for making a decision about their animal. The Lenvilla decision listed there on the slide (Adjudicator’s Order QBCCMCmr146) is about an application for an animal and the specific circumstances were that the body corporate manager could charge the body corporate an amount for organise an ‘vote outside committee meeting’ – the body corporate or body corporate manager cannot pass those costs on (for the decision or meeting) to the person seeking approval as they do not have a contract with the body corporate manager.

The committee or body corporate can set reasonable conditions for each approval. Reasonableness of conditions depends on the circumstances of the scheme. It’s more appropriate for the committee to set conditions that address the body corporate’s concerns than to outright refuse permission. Where possible, the committee needs to focus on avoiding a dispute rather than relying on the BCCM Office to make the decision for them. The dispute outcome is very likely that an animal will be permitted by an adjudicator under a permissive by-law unless the committee has valid and strong reasons for saying no.

When the body corporate has approved an animal with reasonable conditions if an owner or occupier is breaching the conditions, or another by-law, the body corporate can still enforce those by-laws or the nuisance provision in the Act (section 167) an ultimately seek to have an animal removed by order of an adjudicator. The benefit is that the body corporate will have evidence of the nuisance or the by-law breach if the animal has been in the scheme rather than saying no based on hypothetical situations which cannot be proved at the time.

Prohibitive by-laws

Some schemes still have animal by-laws that are prohibitive. They do not give the body corporate the option of allowing animals. Even though a prohibitive by-law may be potentially invalid, it may still be able to be enforced through the contravention notices and conciliation. An adjudicator may not be able to make an enforcement order for a potentially invalid by-law.

Typical wording of a prohibitive by-law may fully-prohibit animals or restrict a type or number of animals – for example “no dogs over 10kg” or “only 1 dog” or “no dogs but other animals allowed”.

The committee or body corporate cannot give permission for an animal that the by-law prohibits. In these circumstances, the body corporate could agree to not enforce the by-law pending the change to a permissive one. An owner can attempt to change a by-law by proposing a motion to a general meeting. This forms part of their self-resolution if the motion does not pass and the owner disputes the body corporate’s decision. The by-law could be found invalid as being, for example, oppressive or unreasonable under section 180 of the Act.

Guide and assistance dogs

To fall into this category, an animal must be registered under the Guide, Hearing and Assistance Dogs Act 2009 which is administered by the Department of Communities, Disability Services and Seniors.

The animal can be trained or in-training.

Under section 181 of the BCCM Act, a person with a registered animal has the right to enter common property or a lot with the animal, or keep the animal on their lot. A by-law cannot restrict this right and would be invalid if it did.

Parking

The topics for today are parking on common property, visitor parks, and towing.

Parking generally

A typical parking by-law is permissive and allows parking on common property. In a permissive by-law, as I’ve said, the committee must act reasonably – i.e. they must approve parking as long as the car will not obstruct or cause a nuisance or damage to common property (or anything else).

Adjudicators have stated that owners and occupiers are entitled to park on common property subject to any valid by-laws for the scheme.

The committee granting approval under the by-law is not granting exclusive use. Exclusive use requires a resolution without dissent at a general meeting and written agreement from the owner getting the exclusive use. An exclusive use by-law must be recorded on the CMS.

If the committee approves an owner or occupier to park on common property under a permissive by-law, they can simply revoke the decision at any time – remembering that decisions must be reasonable. They do not need the person’s consent to revoke permission unlike revoking an exclusive use by-law where the person must agree in writing.

Visitors’ carparks

Visitors’ carparks are regulated by the local council planning requirements. The development application at the local council will usually have a requirements for a certain number of visitor carparks based on the number of lots in the scheme. Because of this, changing or removing visitor carparks may need an application to the council.

The committee cannot authorise people to park in visitors’ carparks as they are designated by the council to be available for visitors to the scheme.

There is no definition of ‘visitor’ in the Act. A visitor could be short-term or long-term.

Whilst visitors don’t technically need permission, if the by-law has time limits the visitors need to comply with them. Some schemes do not have time limits in the visitor or general parking by-laws.

A good practice, if you are having a visitor who might be staying for longer than a day or so, is to inform the body corporate so they are aware it is a genuine visitor and then the body corporate won’t try and enforce the by-law incorrectly.

Some schemes do have time limits on their visitors’ carparks, some schemes do not. Adjudicators have found that time limits on a visitors’ carpark may be reasonable in the circumstances of one type of scheme (for example a city-based scheme with limited space) but may not be reasonable in another type of scheme (for example a suburban scheme with a much lower need for visitor carparks).

Towing

This is a very contentious issue. There’s lots of questions being asked about towing.

The Body Corporate and Community Management Act does not prescribe or regulate towing. The body corporate must follow the by-law enforcement process and be authorised by an adjudicator or magistrate before they can tow a vehicle. There are many adjudicator’s orders that have stated this.

By-laws stating that the body corporate is authorised to tow a vehicle may be invalid, especially if the by-law purports to the give the committee or body corporate to override the by-law enforcement procedures in the Act.

The body corporate can potentially be found liable for damage to property. In some cases the body corporate has had to pay back to the owner the costs of recovering a car from impounding or towing a vehicle.

The body corporate should obtain legal advice from an independent source before towing a vehicle to be aware of any liabilities.

The following are general comments I have found in some Adjudicator’s orders and do not provide legal advice in any way.

  • What the body corporate can do depends on who is breaching the by-laws. They may be able to tow a person not connected with the scheme but not be able to tow owners, occupiers, or visitors.
  • Legitimate visitors is visitors’ carparks should normally not be towed. The body corporate should err on the side of caution with visitors where possible.
  • A third party with no connection to the scheme, as I said, could possibly be towed. Again – get legal advice before doing that.
  • In the circumstances of an owner or occupier parking on someone’s lot it can be dealt with directly by the affected parties. In the circumstances of an owner or occupier parking on someone’s exclusive use area, the exclusive use by-law could potentially be enforced by the body corporate.
  • An owner may have the right to legally tow a person on their own property but should get legal advice first.
  • The body corporate should get legal advice before towing. This is the big take-home point for towing. Get legal advice first.

Contact us

Phone: 1800 060 119 – we are a call back service so you will not get straight through to an officer. We return every call within 24 hours.

Online enquiries: www.qld.gov.au/bodycorporatequestion - we respond to every enquiry within 14 days. If you require an earlier response it is best to call the phone line.

Website: www.qld.gov.au/bodycorporate.

Search previous Adjudicators’ Orders: https://www.austlii.edu.au/cgi-bin/viewdb/au/cases/qld/QBCCMCmr/

Last updated:
13 January 2023
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