BCCM MODULE AMENDMENTS: THE DEVIL’S IN THE (LACK OF) DETAIL

Whilst there was a substantial lead-in time for interested persons to assess the impact and effect of the amendments to the Body Corporate and Community Management Act 1997 (Act) from their passage through parliament in November 2023 to their commencement on 1 May 2024, the same can’t be said about the changes to the various BCCM regulation modules effected by the Body Corporate and Community Management Legislation Amendment Regulation 2024 (Amending Regulation).

Whilst the Amending Regulation was the subject of interested stakeholder group consultation in the early part of 2024, the final version of the Amending Regulation was only publicly released on 26 April 2024 – just 5 days before its commencement, simultaneously with the Act amendments, on 1 May 2024.

So, what are the key changes the Amending Regulation has made to the regulation modules?

Pet Decision Timeframes

This seems to be the big one.

To complement the changes the Act confirming the longstanding position that a by-law cannot unreasonably restrict the bringing or keeping of animals onto a lot or the common property, the Amending Regulation introduces new procedural requirements for body corporate decision making in relation to pet requests.

Under the amendments, a body corporate committee will have a limited time of 21 days (prescribed period) to make a decision in relation to a request to bring or keep an animal onto scheme land. Such timeframe commences when the ‘request is made to the committee’.

If a committee is able to decide the request, it must do so, and cannot defer responsibility for the decision to a general meeting. If the committee is unable to decide the request (because, for instance, the matter is a restricted issue) the body corporate must:

• Call, within 21 days (relevant period), a general meeting to decide a motion in relation to the request; and
• Decide the request at the general meeting within 6 weeks of calling it (prescribed period).

Significantly, if the committee or body corporate does not call a general meeting in the relevant period, or decide the request within the prescribed period, it is deemed to have approved the request (deemed decision).

Whilst that is relatively straightforward, it gives rise to many (currently unanswered) questions. In particular:

• What needs to be included in a request for it to be properly made (and the 21-day timeframe commence)?
• What if the committee require further information to determine the request?
• What conditions (if any) attach to a deemed decision?
• Can a deemed decision be revoked or amended by a subsequent decision of the committee or body corporate?

Whilst the operation of the new provisions won’t be determined until there are disputes giving rise to adjudication decisions in the Commissioner’s Office, bodies corporate would be wise to take a cautious and conservative approach to such requests.

Arguably, regardless of the sufficiency of information included, each request should be considered as a properly made request. If the applicant refuses or fails to provide relevant information, the body corporate may nonetheless be wise to make a committee decision or call a general meeting within 21 days. Failing to do so risks a deemed decision allowing the applicant to bring or keep the animal on the lot and common property.

Making a decision also allows the body corporate to manage and control the imposition of appropriate conditions on any requests. Unless a request is submitted with a list of conditions volunteered by the applicant, a deemed decision will almost certainly result in an approval with no conditions attached. At best, it could be argued that any standard conditions detailed in the by-laws apply.

For bodies corporate that have made the decision to approve the keeping of animals a restricted one for the committee, it is advisable to reconsider that approach and, in most cases, ‘derestrict’ the issue (which would require the passing of an ordinary resolution at general meeting). By failing to do so, a body corporate may incur significant administrative and financial burdens of calling general meetings with each request (or be subject to deemed approvals with limited or no conditions attaching)

Execution of Documents

The removal of the requirement in the Act for a body corporate to have a seal foreshadowed that there would be similar changes (omitting reference to a seal) in the regulation modules.

However, the Amending Regulation goes much further than that, removing the relevant provisions in the modules that provided for body corporate execution of documents (under seal) in their entirety. Accordingly, there is now no legislated requirements for how a body corporate can lawfully execute a document.

Given the lack of specificity, it is advisable that each resolution of a body corporate which requires execution of any documents sets out the manner in which the execution can occur.

As far as general documents (i.e. those not requiring lodgement in the titles office), both the person/s executing any document on behalf of a body corporate, as well as interested parties (e.g. the other party to a contract), would be wise to check a copy of the relevant resolution to ensure that the person/s signing the document on behalf of the body corporate had the requisite authority to do so.

On the issue of documents that are to be lodged in the land titles office, as at the date of writing this article, the land title practice manual is yet to be updated to remove reference to the seal, or otherwise specify the execution requirements for bodies corporate in light of the Amending Regulation.

Given there is no longer a default execution rule under the regulation modules, one option will be for the titles office to require a copy of the resolution authorising execution of the document to be included with every lodgement. This is already (and still) the case for certain types of titles office lodgements (e.g. the grant or surrender of an easement over the common property).

The other option for the titles office would seem to be to maintain the previous default rule of execution by two committee members, one being the chairperson or secretary (but without the seal), with provision continuing to be made for execution in some other manner provided evidence of the resolution allowing same is included with the lodgement.

Certain body corporate decisions, such as the disposal, leasing and licensing of common property, still require the lodgement of certain certificates in the titles office. The amendments to the regulation modules remove reference to the seal being applied to these certificates, but otherwise require the certificate to be signed by two committee members, one of whom must be the chairperson or secretary (i.e. the previous default rule, but without the seal). Provision is made for execution in a different manner in accordance with the resolution (in which case the titles office will require a copy of the resolution to be included with the lodgement).

Until the titles office provide clear guidance on the issue, and what will be accepted for registration, bodies corporate would be wise to continue with the use of the seal and execution by two committee members, one being the chairperson or secretary (or otherwise deposit a copy of the resolution evidencing authority for execution in some other manner).

Article Contributed by Jarad Maher, Partner, Grace Lawyers