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By-Law Limitations Series

In part 1 of our by-law series, we discussed what by-laws are legislated to provide for.

Sections 180 and 181 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) sets out 8 limitations for by-laws. In part 2 we begin with what by-laws cannot say by addressing, with examples, the first 4 limitations.

Limitation 1

“If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency.”

In other words, a by-law must not say something that is contrary to any legislation. Although this is a relatively simple principle, it is one of the most common reasons that a by-law can be deemed unlawful.

A common example is when a by-law that seeks to authorise the committee’s ability to access a lot with 3 days’ notice.

The issue with this by-law is that:

  1. the body corporate’s powers to access a lot is set out in the legislation;
  2. a by-law cannot give the committee additional powers (at least that is the case under the BCCMA); and
  3. the by-law is inconsistent with section 163 of the BCCMA which sets out a number of other requirements that need to be met before the committee can access a lot.

Limitation 2

“If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.”

This means that the body corporate cannot interfere with the residential use of a lot and is why by-laws:

  1. cannot restrict Airbnb and short term letting (which is a lawful type of residential use); and
  2. can restrict certain commercial uses (eg to protect caretaking service contractors from a competing business).

Limitation 3

“A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.”

This limitation prevents by-laws from affecting an owner’s fundamental property rights and prevents any by-law which seeks to:

  1. determine who can purchase a lot; or
  2. let a lot out on a short term basis (including via Airbnb).

Limitation 4

“A by-law must not discriminate between types of occupiers.”

This prevents by-laws from making different rules for different occupiers.

For example, common property facilities cannot be reserved only for owner occupiers as opposed to tenants.


By-laws, particularly by-laws prepared prior to the commencement of the BCCMA, often do not comply with these limitations.

Unfortunately, this only comes to light when a committee tries to enforce the unlawful by-law. By then it is too late and little can be done to enforce the by-law until it is corrected.

Our next article will address the remaining 4 limitations.

Look out for next month’s contribution where we will address the remaining 4 limitations.

This article was contributed by Todd Garsden, Partner – Mahoneys Lawyers

Leave a Reply

  1. Selwyn Lutz

    Sunshine Coast Council development approval for residential use applies to owner occupiers and long term rentals ie ( three months plus ).

    To operate short term letting ie (Airbnb and the like, 1 night up to 3 months ) requires council approval for short term letting under council development conditions.

  2. Gail Watts

    1. Is a body corporate able to introduce a special levy (over and above the normal levies) to owners who are short term letting their units? Our body corporate finds a lot of the common area damage, unacceptable noise and other housekeeping issues requiring reparation are caused by short term tenants….. and those lot owners are not held responsible for these issues as these short term tenants are long gone once the damage is discovered (or whatever this issue is) and proof of responsibility is impossible.

    2. Am I understanding correctly that the Sunshine Council requires lot owners to apply for permission to the Council to let their property?