Given the recent lockdowns that have forced many occupiers to spend more time within their lots, interferences between occupiers have been tested to their limits. Committees may have then found themselves unable to properly manage these interferences because their by-laws were insufficient.

The purpose of by-laws is to provide the committee the power to regulate the use of lots, body corporate assets and common property unique to the body corporate.

Committees have a statutory obligation to enforce the body corporate’s by-laws. However, by-laws are often forgotten about until they are actually needed to be enforced.

The problem for bodies corporate with that is:

1. There are a myriad of legislative requirements for a by-law to be valid (and if it is not valid it cannot be enforced);
2. Changing by-laws is not necessarily a quick process; and
3. This leaves the committee in a position where it cannot effectively regulate improper conduct when that improper conduct actually takes place, leading to the view that by-laws are a toothless tiger.

Requirements for by-laws

By-laws:

• must be regulatory and not prohibitive;
• must be consistent with the BCCMA;
• cannot restrict the type of residential use for a residential lot;
• cannot restrict dealings with a lot;
• cannot discriminate between different types of occupiers;
• cannot impose a monetary liability; or
• must not be oppressive or unreasonable.

If a by-law offends any of these requirements it cannot be enforced by the committee.

Changing by-laws

Aside from exclusive use by-laws, a change to the by-laws requires a special resolution at general meeting and registration of the change at the Titles Office.

This means that any changes must be implemented well in advance of the improper conduct taking place.

Enforceability

If by-laws meet the above requirements they can be successfully enforced by following the specific procedure of enforcement set out in the legislation.

Often this specific procedure is not followed, where the committee looks to shortcut the process. This prevents the committee from successfully enforcing the by-laws.

The committee just needs to have the correct by-laws in place earlier than the improper conduct before beginning the enforcement process.

How we can help

Mahoneys have prepared, and enforced, by-laws for all types of bodies corporate in Queensland. With extensive experience in this area, we understand the nuances and drafting protocol to be able to have in place the right by-laws for the scheme that are able to be enforced and called upon when required.

If you are interested in your body corporate implementing new by-laws that are enforceable, please let us know so we can:

1. review your current by-laws (without cost or obligation); and
2. provide a fee proposal to prepare and record new by-laws with the committee’s requirements being met.

We can also assist with any by-law enforcement issues.

Written by Todd Garsden

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