Q&As from the Enforcing body corporate by-laws webinar

Can I ask our body corporate for a copy of our by-laws?

You can access the body corporate records to obtain any document that exists in the records. If the current by-laws are there, they will usually be in the community management statement (CMS), but may be in a document on their own. You can also get the by-laws from Titles Queensland.

How do we know what our current by-laws are? How much does it cost to obtain a full CMS and bylaws and can I obtain this at my local Titles office for a building in another area?

The by-laws are the ones currently registered on the CMS or under the Title for older schemes. You can read about what by-laws apply on our website. Please contact Titles Queensland on 07 3497 3479 to obtain a copy of the community management statement for any scheme in Queensland. They will be able to advise you of their fees.

What by-laws cover parking when I live at a resort & we have a separate body corporate for each building?

Each separate body corporate has its own by-laws. The by-laws will be registered on the CMS for each individual scheme. Check the CMS for your scheme to find out the parking by-laws. If your body corporate scheme is part of a layered scheme, there may be a principal body corporate with its own CMS and by-laws that regulate the principal body corporate parking. Please contact Titles Queensland on 07 3497 3479 to find out more.

Can we use the enforcement of bylaws process for house rules?

House rules cannot be enforced. Only the registered by-laws are enforceable through the BCCM Office or the Magistrate’s Court. Adjudicators have stated that, while house rules may be able to be in place as long as they do not conflict with the registered by-laws, they cannot be enforced.

Wondering what is meant for prohibitive by-laws to be invalid? I believe our scheme says cannot. Is the “test” Section 180? In schedule 4 of the Act, Section 11 adds ‘without the body corporate’s written approval’. Do the CMS By-laws take precedence?

Section 180 of the Act was amended in 2010 to include subsection (7) A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme. Since that amendment, adjudicators’ orders and appeals at the Queensland Civil and Administrative Tribunal (QCAT) have ruled that by-laws which prohibit rather than regulate to be in breach of Section 180(7) and Section 169 of the Act.

The by-laws recorded in the CMS for your scheme are the enforceable by-laws. Schedule 4 of the Act does not apply to your scheme if the by-law wording is not listed or Schedule 4 is referenced in the CMS. Schedule 4 of the Act does not take precedence to your registered by-laws.

With regards to prohibitive by laws about pets, if a motion is put to a meeting to change the bylaw that prohibits pets & is passed - what then? Is the CMS changed?

If a motion to amend the by-laws is approved and the body corporate authorises the recording of a new CMS, under section 64 of the Act the body corporate has three months from the date of the decision to lodge the new CMS at Titles Queensland. The new by-law will take effect when the CMS is registered. Titles Queensland does not assess the validity of a by-law.

How do you establish if an area is exclusive use or common property?

The survey plan registered at Titles Queensland will show areas of common property and the lots. To find out if any areas of common property have an exclusive use by-law over them, you need to obtain a copy of the community management statement (CMS) or any exclusive use by-laws registered directly on the title before July 1997. If there is an exclusive use area, the wording of the exclusive use by-law will be registered, usually with a sketch plan (separate from the actual survey plan) showing the exclusive use areas.

The body corporate can remove the exclusive use by-law by written agreement from the owner of the lot to which the by-law is attached and a resolution without dissent motion at a general meeting (Section 171 of the Act).

Can a by law in a commercial CMS restrict the use of a lot even though it is lawful under planning scheme – E.G. a brothel in a development not designated to have one.

If a type of business is permitted within the local council development approvals, the body corporate may not be able to make a by-law that prohibits a specific business. Section 180 of the Act states that a by-law must not discriminate between types of occupiers, and must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots in the scheme. The body corporate may want to obtain legal advice about any by-law relating to use of lots before voting to authorise the by-law.

How can we find out if parking spaces marked out on the ground within our complex were part of the original planning scheme approved by our local council?

To find out if visitor car parks were part of the original development application please contact your local council for a copy of the development application (DA). Council plans may show parking where the registered survey plan from Titles Queensland may not show parking spaces.

Is there anything being done by the BCCM about a blanket bylaw re air B&B?

The Office of the Commissioner for Body Corporate and Community Management (BCCM) does not write the laws. The Property Law Review, which included the BCCM Act, has been reviewing the current restrictions on by-laws. However, there have been no amendments to the BCCM Act made by Parliament at this stage.

Please contact your local council regarding for more information zoning laws as this is not within the jurisdiction of the BCCM office.

Can the BC authorise by-laws known to have been deemed invalid by adjudicators?

The body corporate can authorise a new or amended by-law and to record the by-law on a new CMS by special resolution vote at a general meeting. Titles Queensland will not assess the validity of the by-law when registering the CMS.

If the validity of the by-law is not disputed, it could be recorded. However if the body corporate attempts to enforce a potentially invalid registered by-law, an adjudicator may not be able to make an order enforcing the by-law.

Can the body corporate enforce colour schemes, door styles, types of buildings that can be built if the body corporate does not have an appearance of lot by-law and it is standard format plan? What about in a building format plan?

In a standard format plan (called a group title plan- GTP - before 1997), if there is no by-law that regulates the appearance of the lot or buildings or an architectural code or covenant registered in the CMS, then the body corporate cannot enforce a colour scheme or specific door type.

In a building format plan, the exterior of the building is usually common property. An owner would need permission to make a change to the appearance of the common property parts of the building (Section 164 of the Standard Module) and, if there is an applicable by-law, may also need permission under any relevant by-law about changing the appearance of the building.

With appearance of a lot, for example if someone puts up bamboo around the balcony railing, can the by law be enforced or does it have to specify exactly what can or cannot be on the balcony before the by-law is enforced?

If the person is breaching the registered wording of the by-law it can be enforced. By-law wording may not be able to be too specific, especially about appearance of the building, as the by-law may become too oppressive or unreasonable and may breach Section 180 of the Act.

Is the general building presentation covered by the Act, or by-laws?

It is covered by both. Changing the common property, which may form part of the building in a building format plan, is covered by Sections 163 and 164 of the Standard Module. Your scheme’s by-laws may also regulate changes to the appearance of the common property and buildings whether common property or part of the lot.

Can the body corporate stop an owner installing a storage cage on their parking space which is a part of their lot? Or using the car park for storage of other items other than a vehicle?

It would depend on the wording of the registered by-law. If there was no specific by-law regulating the use of car spaces an owner would still need to be mindful over other by-laws which may apply such as obstruction and nuisance.

We have a by-law regarding what is allowed to be stored in exclusive use car space. Storing a stroller is not in the by-law so we currently ask for them to be stored in shed or car boot. Would this be deemed unreasonable?

It is up to the body corporate to interpret the wording of the exclusive use by-law and enforce it when required. To help you understand the test of reasonableness, you can look at previous adjudicators’ orders that relate to determining reasonable decisions on the Australasian Legal Information Institute website

Do you think the following by-law would be valid? The manager shall be entitled to obtain a liquor license and shall be entitled to serve alcohol from part of Lot X (being areas X & Y on level 2), any other residential lots or parts of the common property able to be licenced.

We cannot make a determination about the validity of a by-law. Please read Sections 169 and 180 of the Act and obtain legal advice. You may also need to seek information from the Office of Liquor and Gaming Regulation.

Enforcing by-laws

What is the obligation on a committee to actively investigate purported breaches of by-laws if people just make generalised statements to the committee that "XYZ is happening all over in breach of by-laws? Is the committee obligated to go and investigate these claims or can they reasonably take the position that Form 1 has to be submitted for the committee to take further action?

The Act states that the body corporate must enforce the by-laws if they “reasonably believe” there has been a breach. The body corporate does not need to receive a Form 1 before making the decision to enforce the by-laws. The body corporate may have to demonstrate that it is reasonable in the circumstances of the alleged breach to not enforce the by-laws. Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

However if an owner wants to pursue the enforcement of a by-law they must have issued a Form 1 on the committee of the body corporate.

I am a resident owner and see others breaching by-laws for parking on common property, the body corporate are aware and do not act.

You can issue a prescribed BCCM Form 1 to the committee. They must notify you within 14 days that they have issued a contravention notice. If they do not, you can take further action against the body corporate for failing to enforce the by-laws. Alternatively you can attempt direct self-resolution with the person breaching the by-laws. If they do not stop breaching the by-law, you can lodge a dispute resolution application against the person directly. Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

With reference to the body corporate, does this mean committees and the body corporate as a whole? Unless the scheme has assigned committee duties to the body corporate manager, can the body corporate manager act in enforcing by-laws without committee or general meeting permission?

Where the Act, regulation modules or by-laws use the term “body corporate” without requiring a general meeting motion, the committee can make a decision as the representative of the body corporate. The body corporate manager cannot make decisions to enforce by-laws under a normal engagement when there is an elected committee. They can only make committee decisions if there has been no committee elected and the body corporate manager has been engaged as the committee.

If the committee members are the offenders that continually breach by-laws, how do I deal with it?

As an owner or occupier, you must give a BCCM Form 1 – notice to the body corporate of a by-law contravention - to the committee for each person that is breaching the by-law. The committee member named in the Form 1 may have to declare a conflict of interest and not be able to vote on the motion to issue a contravention notice. The rest of the committee can vote to issue the notice.

Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

Can we enforce a no smoking by law?

The body corporate may be able to authorise a by-law to regulate smoking on either the common property or inside lots, but may not be able to prohibit the lot (including balconies) from being used for a currently legal activity such as smoking. The body corporate can potentially enforce a no smoking by-law through a contravention notice and the conciliation process. An adjudicator would need to consider the circumstances of each individual case when making an order.

I am a building manager. Am I authorised to enforce the by-laws?

You are correct. The building manager is not a decision maker. It is the body corporate who must make the decision to issue a contravention notice. You can continue doing informal communication about by-law issues (as long as you are not causing a nuisance) and when formal by-law enforcement is required, you can give a Form 1 to the committee seeking their decision to issue a contravention notice to the offender.

Can the committee instruct a BC manager to issue breach notices?

Once the committee makes the decision via a committee meeting or a vote outside a committee meeting (VOC) to enforce the by-laws they can instruct the body corporate manager to prepare the contravention notice.

Does the Queensland Civil and Administrative Tribunal (QCAT) hear issues with by-laws?

After issuing a contravention notice, the body corporate can enforce a by-law further by either lodging a dispute resolution application with the BCCM Office or seek to have a fine applied at the Magistrate’s Court. QCAT can hear appeals of adjudicators’ orders. They do not deal with by-law enforcement.

What happens if there is no body corporate, only the by-laws and a Real Estate Agent? How and by whom are the by-laws enforced?

The lot owners in the scheme form the body corporate. If the scheme is registered as a Community Titles Scheme (CTS) it is legally a body corporate entity. If there is no CTS name or number registered at Titles Queensland, only then would the property not be a body corporate under the BCCM Act.

If there is no elected committee, the owners as the body corporate can vote at an extraordinary general meeting (EGM) to authorise the issuing of a contravention notice, or to lodge a dispute resolution application with the BCCM Office if the contravention notice is not being complied with. The body corporate could alternatively vote to enforce the by-laws at the Magistrate’s Court.

You can also attempt direct self-resolution with the person/s breaching the by-laws. You can give them a copy of the Form 1 with a cover letter. If they will not cease breaching the by-laws, you can lodge an application as an owner against another owner or occupier.

Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

We have an owner/occupier who lives with her partner. On numerous occasions, they have had loud arguments, and the police have been called out, as neighbours feared for the resident's safety. The BC has written to the owners twice to ask them to cease this activity. A contravention notice has not been issued yet, so would be the next step. If all steps are followed correctly, is a monetary fine the worst that can happen?

The BCCM Act gives the body corporate the ability to enforce the by-laws through our dispute resolution process. Alternatively, they can get a fine applied by the Magistrate’s Court. If the body corporate goes through the dispute resolution process and needs to enforce an adjudicator’s order they fine is much higher.

If an adjudicator makes an order for a contravention of the BCCM Act, it does not prevent other proceedings being commenced (Section 282 of the Act).

If an occupant damaged a fire door which is the entrance to their unit would a BCCM form 10 or BCCM form 11 be issued. The fire door has been deemed to be unrepairable and needs to be replaced.

A contravention notice can only be issued if there has been a breach of a registered by-law. If there is an applicable by-law, the form being issued would depend on whether it was a continuing and ongoing breach (Form 10 continuing contravention notice) or a breach that has occurred repeatedly and is likely to be repeated again (Form 11 – future contravention notice). You can read about the two contravention notice types on the enforcing by-laws page.

If the damage to property was caused by the occupant’s breach of the Act or community management statement, the body corporate has a statutory right to seek that the person who caused the damage carries out the repairs or pays the cost of the repairs back to the body corporate – see Section 281 of the Act.

How do you enforce the speeding limit?

The body corporate must enforce by-laws if they reasonably believe a breach is occurring so they could vote to issue a contravention notice. However, if they wish to take the matter further through the Magistrate’s Court for a fine or through the BCCM Office, obtaining evidence of speeding may be difficult without a way of measuring the speed.

Towing

If the body corporate has a towing agreement approved in a general meeting, notices have been placed on site and given to all residents, can occupier’s vehicle be towed if in breach? Or still has to go through the by-law contravention process.

Even if the body corporate has engaged a towing company as a service contractor, the contract cannot remove the requirement to follow the by-law enforcement process under the Act. The body corporate should seek legal advice about their liability when they tow without following the contravention process.

As the resident manager, if I have an unregistered car towed away and the owner wants it back, then I could be liable for the cost of replacing the car if it can’t be recovered? Can I tow the car onto the road and let the local council deal with it? Can I have cars that drip excess amounts of dirty engine oil removed if the owners refuse to fix them?

If you choose to tow a vehicle away or even move it to council land, without the body corporate or owner’s authority, you may find yourself liable for any damage to property or costs. You will need to get legal advice about your liabilities if you choose to remove another person’s property without correct authority.

As a resident manager, you cannot enforce the by-laws. The body corporate must make the decision to issue a contravention notice to the occupiers who are breaching the by-laws. The body corporate must follow the process of enforcing the by-laws required by the Act.

Can the BC remove/tow an unregistered vehicle that has been in the visitor's car park for over 12 months?

The body corporate needs to get legal advice to understand their liabilities before they decide to tow. The BCCM Act sets out the by-law enforcement process. The Body corporate can be found liable for damage to property. In some cases the body corporate has had to pay the cost of recovering the car back to the owner of the vehicle.

An unregistered vehicle parked in the correct space is not necessarily a breach of a by-law. The body corporate can enforce the by-laws if there is a breach occurring.

The body corporate should seek advice from the Police and lawyers about how they can deal with abandoned property and the possible consequences.

Why can't a Principal Body Corporate enforce their own by-law and tow repeat offenders from their common properties.

A principal body corporate, in a layered scheme, can enforce the by-laws registered on the community management statement. Just like a subsidiary or basic scheme, they may be liable if they tow vehicles without attempting to follow the by-law enforcement process and obtaining an adjudicator’s order first. The principal body corporate can obtain legal advice about their liabilities.

Can we tow vehicle parked on the driveways that blocks emergency access?

Where there is no emergency or urgent circumstances, the body corporate must follow the by-law enforcement process. The body corporate will need to obtain legal advice to if they think they may, in future, need to remove a vehicle in an emergency due to obstruction without authorisation of an adjudicator.

The body corporate can skip the requirement for issuing a contravention notice in special circumstances (Section 186 of the Act). This may apply if the contravention is likely to cause injury to persons; or serious damage to property; or it is a risk to the health or safety of persons; or it is causing a serious nuisance to persons; or for another reason, the contravention gives rise to an emergency.

We have a vehicle which is owned by someone living interstate it broke down while he was visiting a relative and has been here for 4 or 5 months. Can it be towed? Who do we give the Contravention Notice to - we do not have his name or address or the occupiers he was visiting exact name or address.

The body corporate may be liable for damage to property if they tow a vehicle without following the by-law enforcement process first. They should obtain legal advice.

The body corporate needs to check the wording of the by-law. They may be able to give a contravention notice to the occupier of the lot if the by-law regulates invitees or visitors of occupiers in the scheme. They could give an informal notice and a copy to the owner while attempting to get the body corporate roll updated.

Can a BC have a by-law to lock the wheel of a vehicle that is parked in a Visitors parking bay in contravention of a by-law?

A by-law allowing a wheel clamp may be similar to a by-law allowing towing. A by-law cannot be oppressive or unreasonable. If there is a charge for removing the wheel clamp, a by-law cannot impose a financial liability. The body corporate needs to be aware of potentially being liable for causing damage to a person’s property. The body corporate will need to obtain legal advice about whether they can potentially touch another person’s property.

Visitor car parks

Can the body corporate grant permission for a resident to park in the Brisbane City Council regulated visitor parking space? A resident is asking to have exclusive use of the visitor parking space between the hours of 7pm-7am daily.

Adjudicators have consistently stated that the body corporate cannot grant an occupier permission to park in a visitor car park as they are usually regulated by the local council planning requirements.

If a lot owner has one car space and two cars and returns every weekend and for holidays and parks in a visitor car space - This is in breach of the by law as they are not a visitor. What can be done in this situation?

Refer the owner to the multiple adjudicators’ orders that state that occupiers are not visitors. There is no one definition of a visitor and adjudicators have addressed the visitor definition in various orders. The Act (in the dictionary in Schedule 6) defines an occupier as “a resident owner or resident lessee of the lot, or someone else who lives at the lot or a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot”.

The body corporate can enforce the by-laws. Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

Can we tow non bona fide non-visitor / non-resident parked cars from the visitor’s carpark?

Non-resident or non-visitor cars potentially can be treated differently from occupiers and legitimate visitors. Best practice is for the committee to obtain legal advice about towing vehicles of non-residents or non-visitors to the scheme. The body corporate may need to investigate whether they need to install signs or give some form of warning notice first.

Can a person ask permission from an owner to park in the visitor car park when they are going elsewhere and not actually visiting?

Visitor car parks are regulated by the local council for use by visitors to the scheme. An owner can’t give a person permission to park in a visitor car park if the person is not visiting the scheme. The body corporate may potentially be able to take direct action against non-visitor who is parking on body corporate property in a visitor park

If a body corporate has an easement over its property to benefit another building and that other building’s residents park in no parking areas. Is this a common law issue for towing? There is no overarching Principal Body Corporate in place. The other building’s by-laws don’t even refer to the easement so the other building says they can’t enforce as not part of their scheme.

Best practice is for the committee to obtain legal about enforcing the easement, depending on the wording and conditions. The body corporate can also get legal advice about whether they would be able to tow vehicles breaching the easement. The body corporate may need to investigate whether they need to install signs or give some form of warning notice first.

Can the Body Corporate change the location of the visitors’ car parks and still maintain the required number by council approval?

Check with the local council about the location of the car parks. The location of the car parks may be a specific part of the development application. If only the number has to be maintained, the body corporate can make a change as an improvement to the common property. If the cost of the change is over the committee’s spending limit or changes the rights, privileges or obligations of owners, the body corporate can vote at a general meeting to change the visitors’ car park locations.

Can we install remote control Bollards in all visitors’ carparks?

The body corporate can make an improvement to common property, if there is funding available in the budget. Setting up a system for regulating access to visitor car parks would need to be investigated and all the issues, processes and obligations would need to be approved. The body corporate may need legal advice and to speak to the local council about regulating visitor car parks. It may be a restricted issue for the committee (Section 42 of the Standard Module).

Can an owner have a business in a garage and park in visitor carparks?

An owner is unable to park in visitors car spaces. However, visitors to his business may be able to.

Can the committee designate a visitor's carpark for a tradesperson car space?

The visitor car park requirements are set by the local council planning laws. Please check with the local council if you can remove a visitors’ car park from general use. If so, the body corporate will need to authorise the change to the common property. It may be a restricted issue for the committee to vote on.

Is a visitor car space common property?

Usually they are on common property. Refer to the registered survey plan to see what areas are common property. You can obtain survey plans from Titles Queensland by phoning 07 3497 3479.

The BC Committee allows occupiers’ work trucks/vehicles in visitor car parks from Friday to Monday and overnight during the week instead of next to their unit or in the designated area away from the Residential areas. How can this issue be solved?

As an owner or occupier, you must give a Form 1 – notice to the body corporate of a by-law contravention - to the committee for each person and each by-law they are breaching. If the committee votes not to enforce the by-laws or ignores your Form 1, you can then dispute the body corporate’s decision by lodging a conciliation application with the BCCM Office.

Alternatively, after giving the Form 1 to the body corporate, you can attempt direct self-resolution with the person/s breaching the by-laws. You can give them a copy of the Form 1 with a cover letter. If they will not cease breaching the by-laws, you can lodge an application as an owner against another owner or occupier.

Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

Some years ago a motion was put at the AGM (& passed) to allow residents to park in the visitors' car parks. I believe this motion was unlawful to be put. How can we have this reversed?

A motion can be reversed by the body corporate passing a motion of the same type to revoke or amend the previous motion (Section 95 of the Standard Module).

Parking

If a lot owner/resident is in breach of a car parking by-law with 2 or 3 extra vehicles on site can this matter be escalated as a matter of priority?

The committee can vote via a vote outside a committee meeting in writing to make a quick decision to issue a contravention notice. The timeframe for the return of votes is dependent on the circumstances of the vote. The contravention notice can set a timeframe for the contravention to stop that is reasonable for the circumstances. Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

If a committee takes no action on car parking breaches for years, does this make the case harder to be ruled on by the commission?

If the person complaining about a by-law contravention can demonstrate that there is still a contravention occurring, and they have given the body corporate the form 1, that person will then have standing to lodge a conciliation application. The onus is on the applicant to demonstrate the by-law breach is current and that the body corporate’s refusal to enforce the by-laws is a breach of the legislation. They can include the evidence of the body corporate’s lack of enforcement in their application.

We are thinking of establishing a car-parking sub- committee for our multi use building - residential, commercial and hotel. Do you have any advice on how to approach the issue?

The legislation does not mention sub-committees. Please note that any committee other than the elected committee cannot be a decision maker. The body corporate cannot delegate its power under Section 97 of the Act. When needed, the sub-committee could follow the prescribed by-law enforcement processes and give a form 1 to the committee as well as general suggestions and advice for the committee to action. Please ensure you read about enforcing by-laws and Practice Direction 6 – by-law enforcement applications.

Can tenants temporarily park in our loading bay if there are no visitor car bays? Loading bay signage says no visitor can park in the loading bay, it is not listed in the by-laws as I’m aware. Is this valid?

Check the wording of the registered by-laws and the council development approval. If there is no by-law designating the loading bay as a visitors’ car park, it may be general common property and the body corporate may be able to approve short term or temporary parking in the loading bay if the general parking by-law allows them to.

Can by-laws restrict the types of parking on a lot? For example no caravans/boats/trailers in driveways? No parking on gardens?

By-laws can regulate the use of a lot (Section 169 of the Act). However a by-law cannot be oppressive or unreasonable in regard to the whole circumstances of the scheme (Section 180 of the Act).

What happens if the vehicle parked is a larger vehicle (eg caravan) and is regularly parked (6 days each week) on common property, and other residents have complained? What is the body corporate committee required to do?

The body corporate must enforce the by-laws. Owners should make sure they have given a Form 1 to the body corporate.

It depends on the wording of the by-law. If the by-law wording allows an occupier or owner to seek permission to park a vehicle on common property, the body corporate will need to decide if it is defined as a vehicle, if it does not breach other by-laws such as obstruction of common property for example. The owner needs to seek permission if required by the by-law. A committee or body corporate decision must be reasonable in all the circumstances (Sections 94 and 100 of the Act).

Can an exclusive use car park be used for storage if the occupant does not have a car? Can the body corporate stop people using the exclusive use car parks for storage rather than parking vehicles?

Refer to the wording of the registered by-law in the community management statement (CMS). If it states the car park can only be used for a vehicle, then using it for storage may be a breach of the by-law.

Can the body corporate breach an owner or occupier for using a car park that is part of the lot for storage of non-vehicular items?

If the owner or occupier is breaching the by-law in regard to use of the lot, the body corporate must enforce the by-laws. Please note that “part of the lot” means inside the boundaries of the lot shown on the survey plan. Exclusive use areas of common property are not “part of the lot” and are shown separately on the exclusive use sketch plan attached to the exclusive use by-law.

Are electric kayaks vehicles?

The BCCM Act does not define what a vehicle is. A general definition in the dictionary can include watercraft. It is up to the body corporate to define what they believe a vehicle is for the purposes of enforcing their by-laws. They may need talk to the Department of Transport or obtain legal advice.

Pets

If a pet does not leave the lot, do they need permission from the body corporate to have the pet, such as an indoor cat?

The owner of the cat would need to check the wording of the registered animal by-law for the body corporate. For example, if the wording says you need permission to bring an animal onto the lot or common property, then the owner of the cat would need to seek permission, even if it is an indoor animal.

Please define an animal. Does it include snakes, etc. Anything that is not a domestic type? Can the by-laws say no spiders in the complex?

There is no definition of animal in the BCCM Act. You can refer to your local council laws as they usually will have a definition. For example, the Gold Coast City Council law is cited in an appeal of an adjudicator’s order (wording of council law is current at 2008): ‘…the term “animal” defined to include “any live member of a species, including any mammal, reptile, amphibian, bird and fish but does not include an animal of a species excluded by local law policy from the application of this law”…’

Local council laws will generally regulate the types of animals an owner can have within their property, body corporate or not.

At the body corporate level, a body corporate by-law can regulate the requirement for approval of an animal and potentially set conditions that are specific to that scheme. By-laws that prohibit certain types of animals that are permitted under local council laws and could reasonably be kept in a body corporate property may be invalid.

You would need to check with the local council for your area and Queensland Parks and Wildlife Service about keeping native animals as pets, or species that have been imported, licensing requirements etc.

Recently a new dog for which no application has been made and another off lead engaged in a vicious fight on body corporate land. What must I do to have the new dog removed?

Depending on the wording of your scheme’s by-law, the owner may be in breach for not having permission for their dog. An owner or occupier can start the by-law enforcement process by giving a notice to the body corporate (Form 1) for the breach of the animal by-law. Potentially the off lead dog was also in breach of a by-law or the conditions of approval for that animal. Please ensure you read Practice Direction 6 – by-law enforcement applications before lodging an application to enforce by-laws.

If the animal is also causing a nuisance or hazard it may also be a breach of the nuisance provision (Section 167 of the Act). The complainant can attempt direct self-resolution with the owner of the dog to try to resolve the issue. It is a good idea to document or keep a diary of the actions of the occupier to demonstrate that how they are using their lot or common property in a way that causes a nuisance or hazard.

Can a real estate agent give approval for an assistance dog for their tenant with PSDA without body corporate approval based under Guide, Hearing and Assistance Dogs legislation?

The owner of a dog registered under the Guide, Hearing and Assistance Dogs Act 2009 (GHAD Act) has the right to enter common property or lot with an animal or keep an animal on lot (Section 181 of the BCCM Act). There is no requirement to seek permission from the body corporate as they already have the right to bring the animal onto the common property or lot. It may be practical to advise the body corporate that the animal is present and advise the status as a registered GHAD animal to prevent confusion.

Whilst the body corporate cannot limit pet (dog) sizes and weights, we have local by-law that says all animals MUST be carried on common property, including lifts. This tends to limit pet sizes. Can we also restrict animals to common property areas like the pool?

Your by-law, or part of the by-law, for your scheme may potentially be considered invalid if it requires all animals to be carried. A by-law cannot be oppressive or unreasonable having regard to the whole scheme (Section 180 of the Act). Perhaps the body corporate could consider amending the wording of the by-law to include ‘appropriately restrained’ instead of carried.

Our body corporate does not allow pets without written permission from the body corporate. We have a unit owner feeding stray cats. However she claims they are not her pets. These cats are now hanging around the complex and increasing in numbers. What can the Body Corporate do to stop her from feeding the stray cats?

Look at the wording of the animal by-law. It may simply say an occupier needs permission to bring an animal onto common property. If so, the body corporate may be able to enforce the by-law if they reasonably believe the owner is breaching the wording of the by-law.

Alternatively, an occupier cannot cause a nuisance or a hazard, or interfere in another occupier’s enjoyment of their lot or common property in the way they are using the lot or common property (Section 167 of the Act).

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Q&As from the Enforcing body corporate by-laws webinar

Enforcing by-laws

Towing

Visitor car parks

Parking

Pets

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