Commissioners Corner – Applicable By-Laws (QLD)
A regular topic I get asked to speak or write about is by-laws. As a result, I have spoken at length about by-laws, what they are (and are not), how they operate, and what effect they might have for occupiers and owners in a community titles scheme.
It must be remembered that by-laws apply equally to occupiers and owners and that the body corporate is responsible for enforcing its by-laws. However it is critical for all involved in community titles schemes to ensure they are looking at the right by-laws for that scheme.
Too often my Information Service hears of the situation where an assumption has been made that the by-laws contained in Schedule 4 of the Body Corporate and Community Management Act 1997 (the BCCM Act) apply. Unfortunately, it’s not that simple.
Over a period of time, a body corporate might have become used to believing that a particular by-law, or set of by-laws, is in force, simply from force of habit, only to discover – particularly when a dispute arises – that this is not the case.
So, it is important to remember that it is the community management statement (CMS) for a community titles scheme which gives ultimate effect to a scheme’s by-laws.
The CMS is registered with the Titles Registry and it is only when the CMS is recorded by the Registrar that it takes effect, including the by-laws included in the CMS.
It is important to remember also that when a change is sought and resolved by a body corporate which impacts on the CMS, the CMS itself is not amended – a new CMS needs to be recorded in place of the previous CMS.
It is reasonably common for the assumption to be made by bodies corporate, committees, lot owners, body corporate managers, property managers and legal practitioners that a particular set of by-laws is in effect without realising which CMS is – or is not – recorded with the Registrar.
The age of a building and when the community titles scheme was first established will also play a part in determining the applicable by-laws.
My Office does not maintain a register of by-laws or details about each CMS.
There have been a number of adjudicators’ orders about the applicability of by-laws.
One recent decision in particular goes into some detail about what by-laws might apply and how this applicability in turn can have an impact on the purported enforcement of the by-law by the body corporate – further information is at http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2016/450.html.
Some useful tips for a body corporate on this topic include the following:
- Don’t make an assumption – conduct relevant searches or seek qualified legal advice about applicability of by-laws;
- Consider how this then effects any current or proposed by-law enforcement action; and
- Take the opportunity to review by-laws to ensure they are relevant, taking into account adjudicators’ orders or decisions of higher courts. Again, this might be something on which a body corporate might want to seek qualified legal advice. For queries on this topic or body corporate matters generally, visit our website www.qld.gov.au/bodycorporate or contact the Information Service of my Office on 1800 060 119.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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Our complex has a new owner who is carrying out major renovations to her bathroom. The owner was made aware of the building rules [by way of receiving the Community Management Statement when she purchased the property]. Part of the building rules outlined the days and times [non emergency] tradespeople can be on site regarding parking/storing of vehicles/equipment on common property, cleanliness of the common property, proper disposal of displaced materials, conduct of the workmen and, safety. The hours the tradespeople can be on the property due to noise transfer into other units is between the hours of 8am and 4;30 pm – no Sundays or public holidays. The owner allowed the trades-persons to enter the property at 7:10 am and commenced work at 7:30am creating abnormal noise to travel throughout the building plus’ allowing a drop sheet to be laid across the stairwell creating a safety hazard for other occupiers using the stairwell. When the owner was asked to explain her actions’ the owner replied “Quote” my unit is private property – the building rules do not count “Un-Quote”. Please advise if this owner is correct and. can do what she likes when she likes – creating excessive noise levels on any day at any hour plus’ allowing the workmen to create a safety risk to other occupiers when exiting/entering the building. Harry Roberts -Secretary Salvatore Court Body Corporate
Dear Mr Roberts
Thank you for your comment.
This query is one which the Information Service of my Office can provide assistance. I would recommend you telephone us on 1800 060 119 (free call) and one of our officers will call you back to give you information about this matter. For the call, it would be useful if you had to hand details such as the plan of subdivision and regulation module applicable to your scheme (if known).