BY-LAW SERIES – PART 4 – ENFORCEMENT
In part 1 of our by-law series, we discussed what by-laws are legislated to provide for. In parts 2 and 3 we discussed what by-laws cannot provide for. In the final instalment of our by-law series we discuss the requirements and process for enforcing by-laws.
Section 94 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) sets out two specific obligations that a Body Corporate must follow in respect to by-laws. First, they must enforce the by-laws and second, they must act reasonably when doing so.
Accordingly, there is a statutory obligation on the body corporate to enforce the by-laws for the Scheme unless it would be unreasonable to do so.
Committees have recently been criticised by adjudicators of the Office of the Commissioner for Body Corporate and Community Management (OCBCCM) for not taking enforcement action when it has an obligation to do so.
For example, in Artique [2021] QBCCMCmr 596 the adjudicator relevantly provided:
[46] I will make a comment about the body corporate. The body corporate has said this is a matter between the applicant and the respondent and it declined to make a submission on this application. It did not issue a by-law contravention notice in response to the applicant’s complaints. In correspondence to the applicant, it said it gave the respondent a copy of the bylaw and tried to ‘broker a resolution’, but that it was a personal interpretation as to whether there was a breach and it could not make that determination.
[47] The body corporate is not obliged to enforce section 167 of the Act, but it does have a statutory obligation to enforce the by-laws, including By-law 5. Moreover, it must act reasonably in undertaking its functions and in making decisions. If the body corporate did not reasonably believe the respondent was in breach of By-law 5, it did not need to issue a by-law contravention notice to her. If it was unsure if the by-law had been breached, it could have asked the applicant for more evidence to assist it in making a decision. However, I do not consider that it could fail to act simply because it thought it was not its responsibility to decide if the by-law had been breached or that it was just a matter between residents.
The process
Once the body corporate has been made aware of a by-law contravention and has sufficient evidence they must issue either a:
- continuing contravention notice – if the breach is ongoing (such as an unapproved installation); or
- future contravention notice – for anticipated and recurring breaches (such as noise complaints or intermittent parking issues).
Whilst there are template forms available from the OCBCCM, there is no prescribed form that must be used.
In order for a contravention notice to be enforceable, the notice must:
- relate to an enforceable by-law;
- be authorised by the committee through a resolution;
- be reasonable in all of the circumstances;
- be issued in circumstances where the committee believes the recipient:
- has contravened the by-laws (or is contravening the by-laws); and
- will likely contravene (or continue to contravene) the by-laws again;
- specifically include the following statements:
- that the body corporate believes the person has contravened a by-law;
- the by-law the body corporate believes has been contravened;
- details sufficient to identify the contravention;
- for a continuing contravention – the period in which the contravention must be remedied;
- for a future contravention – that the person must not repeat the contravention; and
- that if the person does not comply with the notice the body corporate may, without further notice, take steps in the Magistrate’s Court of OCBCCM.
The contravention notice must also be sent to the owner of the lot if the lot is tenanted.
If the by-law contravention notice is not complied with, the body corporate has the power and obligation to commence proceedings in either the:
- Magistrate’s Court (which is rare, but may result in the court imposing a fine); or
- OCBCCM (which is the most common path). This then usually involves:
- conciliation; and
- if conciliation is not successful, adjudication (which may provide an enforceable order).
Enforcing by-laws is an important part of administering a body corporate. Committees often try to shortcut the process in an attempt to expedite a resolution. However, if a committee does not follow prescribed enforcement process it will often be met with an unsuccessful outcome.
We hope you found the by-law series helpful. The aim was to arm committees and body corporate managers with the knowledge to help them avoid unlawful by-laws and give them the tools to successfully administer any scheme.
Please contact our dedicated body corporate team if you need any assistance with body corporate by-laws for a scheme you have an interest in.
This Article was contributed by Todd Garsden, Partner- Mahoneys
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I went back and read the 4 articles re by-laws from Mahoney Lawyers. They are important information for committee members and should be the sort of information that committees are aware of and are prepared to double check for detailed information when bylaws are updated or when dealing with contravention situations. They are certainly the knowledge that Body Corporate Managers should be fully aware of as they advise committees.
However, I don’t feel the articles address the real needs of owners in everyday situations when confronted with disruptive and often unsafe behaviour within strata buildings. I was most concerned re another article published last Friday on Smart Strata, and written by the commissioner, re the responsibility for compliance with by-laws which I interpreted as being solely “a committee responsibility” and the role of the “caretaker” was identified as being extremely limited.
While all 5 articles outlined the detailed processes for committee action where lot owners and possibly permanent tenants are involved in contravention of by-laws and where the processes require finite time frames, the articles all failed to deal in a practical way with the sector that are far more frequently in contravention of by-laws. All the advice given re serving contravention notices is totally irrelevant on an everyday practical level with respect to short term tenants. (The time frames involved in contravention procedures demonstrate this.)
They all failed to recognize that, as per the legislated definition of the accommodation module, lots are “predominately for investors providing rental accommodation”. Consequently, in any building correctly governed by the regulations of the accommodation module, more than half of the people, at any set time, in many buildings are neither owners nor residential tenants. They can be predominately short term holiday tenants, particularly for buildings located in coastal holiday destinations.
While owners can certainly break by-laws and should have contravention notices issued via the committee as legislated for non-compliance, the most persistent concerns, the serious safety issues, the disruptive and anti-social behaviour in many buildings of this type are regularly caused by short-term tenants. Partying, consumption of alcohol in common areas of the building including the pool areas, unsupervised children, disruptive or dangerous behaviour in the pool, overcrowding of lifts and individual lots, damage to units and common property, use of any “unoccupied” car park for their invitees should surely all be proactively and promptly addressed by the letting agent where tenants and their multiple invitees are involved in lots for which he or she is the paid delegate of the owner. Airbnb tenants pose a more complex problem.
The problem is multilayered. In many buildings by-laws are not provided for short term tenants in the rental pool or in lots let via Airbnb; tenants have no appreciation of the by-laws and are consequently frequently non-compliant and disruptive to residents within the building. This is the first step to be addressed.
The article last Friday from the commissioner ignored a most significant factor. The caretaker is generally also the “letting agent”. His or her very considerable income (in addition to the caretaker salary) comes from being the paid agent for multiple lot owners. As such, he or she must be responsible for ensuring that ALL tenants in the lots they represent are firstly aware of all by-laws and, as occupiers, adhere to those by-laws.
Most Letting Agreements between the Body Corporate and the letting agent delegate considerable responsibility to the letting agent with respect to their tenants. In addition, and most significantly, they grant a monopoly right, to a letting agent to run a financially lucrative letting business from within the building. It must surely be appropriate that, with that right and financial benefits comes a serious obligation to ensure that anyone renting via the letting agent does not interfere unreasonably with the quiet enjoyment of other lot occupiers in both their lots and on the common property. The letting agent receives income to take responsibility. The committee do not.
Obviously, this does not cover the contravention of By-laws by Airbnb tenants and, equally obviously, the caretaker will complain bitterly where Airbnb tenants cause disturbances.
It is important to note that most well written by-laws indicate that owners (or occupiers) are directly responsible for the compliance with by-laws of their invitees. Once a letting agent signs the owner/agent agreements, then that agent, whether you term them “caretaker” or “letting agent” should, as the delegate of the owner, be responsible for the compliance with by-laws of any occupiers or “invitees” of that lot.
With Airbnb, it would follow that the lot owner should be directly and fully responsible for the occupants and invitees in the lot. Bylaws should be readily available in every lot and be proactively promoted by the owner. Any agent/owner renting by this method should be served contravention notices promptly when appropriate.
Any lot owner, being disrupted by the unacceptable behaviour of short-term tenants, should firstly ensure the bylaws clearly make the owner (or his agent) responsible for the behaviour of occupiers and invitees. Initially phone calls to the lot owner via the Body Corporate Manager(all recorded) alerting them immediately re concerns, and continuous contravention notices (via a committee) against the lot owners or the agent re the behaviour of their “invitees” then finally taking the matter into the adjudication and finally the court system appears to be the only way to get the problem addressed and a legal precedence set to protect the rights of resident owners to “the peaceful enjoyment of their lots”.
On a practical level, the problems certainly persist.
What happens where there is a clear breach of a by-law (e.g. repeated and frequent parking in a signed visitor area) and the Committee refuses to Resolve to issue a contravention notice; with particular reference to BUGTA?