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By-laws: The basics

Body corporate by-laws: the basics

What are by-laws?

The body corporate is regulated in two main ways:

  1. Legislation
  2. By-laws (internal rules for each body corporate)

By-laws regulate what can and cannot happen inside the community titles scheme, and cover a wide range of topics, for example:

  • Changes to each lot’s external appearance
  • Renovations of lots
  • Rules for using the shared recreation areas
  • Body corporate supplying services to residents
  • Speed limit on the shared driveways
  • Opening times of the shared facilities
  • What plants can be planted in courtyards

What types are there?

By-laws can be broadly classified into two types:

  1. Normal by-laws – These regulate what can and cannot be done in the scheme and control the conduct of residents.
  2. Exclusive use by-laws – These are a special type of by-law which:
    • Grant exclusive use areas to owners of lots (e.g. parking spaces or courtyards)
    • Dictate who maintains the exclusive use areas
    • Applies rules about what the exclusive use areas may be used for, and if they can be improved or physically altered.

Where do we find them?

By-laws are documented in your community management statement (CMS). The CMS is the master document which includes:

  • A list of the lots included in your body corporate scheme
  • The contribution and interest schedule lot entitlements for each lot, and the totals
  • By-laws
  • Any exclusive use areas
  • Any statutory easements

By-laws are specific for your individual body corporate development. Importantly, they are not rules created or applied by BCsystems, they are rules set by the body corporate itself.

Who do they apply to?

By-laws apply equally to owner-occupiers, tenants, and visitors. Any person coming into the body corporate scheme is subject to the by-laws.

Consider a simple by-law: “The pool must not be used after 10pm”. That by-law controls the use of the pool, and applies equally to owners, tenants, and their visitors.

Another by-law such as “Visitor parking may only be used by genuine visitors” also applies to everyone, specifically preventing anyone other than a genuine visitor from parking in the visitor parking.

As by-laws are custom for each body corporate scheme, the language used in the by-laws can differ and may refer to:

  • Owners and tenants,
  • Occupiers
  • Residents
  • Proprietors (usually in older by-laws)

Generally, these terms are defined in the by-laws, otherwise they have their normal meaning in the relevant legislation.

What about tenants?

Tenants in a body corporate development are occupiers for the purpose of by-law application, whether or not the tenant is named on the lease.

It is a legal requirement for the owner or agent of the lot to give a copy of the body corporate by-laws to the tenant.

In addition to being subject to the body corporate by-laws, tenants in Queensland are automatically required to comply with the by-laws under the terms of the Residential Tenancies Authority (RTA) General Tenancy Agreement.

The RTA General Tenancy Agreement automatically makes it a breach of the tenancy agreement (lease) if the tenant breaches the body corporate by-laws.

Breach of by-laws = breach of lease

It is up to the owner or their agent to ensure that their tenant is complying with the terms of the lease, and this may require that the owner or agent issue the tenant with a tenancy breach notice if the tenant breaches the body corporate by-laws.

An ongoing breach of the body corporate by-laws by the tenant may be grounds for the owner or agent to evict the tenant.

How can they be changed?

By-laws are originally decided by the developer who created your body corporate scheme, but the body corporate has the power to change its own by-laws via a democratic voting process.

The two types of by-laws (discussed earlier) will determine the type of voting required to make any changes to the by-laws.

  1. Normal by-laws
    • Committee (generally assisted by a body corporate lawyer) reviews by-laws to identify which by-laws need to change.
    • Committee proposes to change those by-laws at a general meeting (AGM or EGM)
    • Owners vote on whether to adopt the new or changed by-law/s
    • The threshold required to approve a change to normal by-laws is a special resolution. There are some complicated vote counting rules for a special resolution (which BCsystems will manage) but the general principle is that two thirds of those owners who vote at the meeting need to support the motion for it to be approved.
  1. Exclusive use by-laws

The process to change exclusive use by-laws is similar to normal by-laws, however:

  1. The motion required is a resolution without dissent, which means the motion cannot be opposed by any single owner. Even one “no” vote from an owner will cause this motion to fail.
  2. Granting or removing exclusive use from a lot also requires the written consent of that relevant lot owner, which protects a lot owner from missing the AGM and having their exclusive use area removed without their knowledge.

AGM or EGM motions can be proposed by owners too, not just by the committee. Owners are invited to submit their own motions each year before the AGM is held.

In many cases a relatively simple edit to an existing by-law to solve a particular problem may cause other unintended knock-on effects.

Given the complexity of by-laws, it is generally best for the committee to take a unified approach to any revisions and with the assistance of BCsystems and a body corporate lawyer, rather than owners submitting their own motion.

When and why would by-laws be changed?

This depends entirely on your body corporate scheme. Most bodies corporate make some change to their by-laws every few years, generally motivated by:

  • A change to the legislation making an existing by-law invalid
  • New technology or issues that were not anticipated (e.g. electric vehicle charging)
  • Streamlining common requests (e.g. solar panels)
  • Change to policy about certain issues (e.g. pet by-laws)
  • Change to local council regulations (e.g. building carports)
  • Installation of a new feature or service in the development (e.g. adding a pool/spa)
  • Responding specifically to common nuisances not listed in by-laws

Sometimes the original by-laws were applied by the developer or their solicitor without much customisation. For example, we often see by-laws which include standard references to pools and gyms, even in body corporate developments which don’t have those facilities.

If a by-law has no relevance to your body corporate development, it can usually be removed using the approval process described above.

How are by-laws supervised and enforced?

There is no body corporate police force – the body corporate regulates its own by-laws.

If your body corporate has a caretaking service contractor (on-site manager), it is generally a duty of the caretaker to take initial by-law monitoring and notification steps including:

Informal steps
  • Monitoring/observing compliance with the by-laws
  • Recording/logging by-law issues
  • Advising residents of by-laws if they appear to be unaware
  • Notifying the owner/agent of the issue if the unit is a rental
  • Making suggestions to minimise the nuisance (e.g. locking the pool gate at closing time)
  • Reminding residents of common by-law issues (e.g. by a newsletter focusing on an issue topic)
  • Providing first warnings about potential by-law breaches
  • Providing final warnings about by-law breaches

 

If the steps above are carried out by the caretaker and the by-law issue continues, then the matter should be escalated to the committee, generally in a monthly report unless the matter is urgent.

The committee holds the formal by-law enforcement power which includes:

Formal enforcement
  • Issuing a by-law contravention notice (a breach notice)
  • Setting a formal compliance date
  • Making an application for conciliation
  • Making an application for adjudication of a dispute
  • Commencing Magistrates Court proceedings

These formal steps can only be authorised by the committee.

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