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Enforcing by-laws

By on September 29th, 2022 in Research

A body corporate is responsible for enforcing its own by-laws. Owners and occupiers can also take action to enforce the by-laws. The steps that must be taken depend on who is enforcing the by-laws. See how to deal with by-law breaches for schemes registered under the Specified Two-lot Schemes Module.

Body corporate enforcing by-laws

If a body corporate believes that an owner or occupier is breaching the by-laws, the body corporate can speak to the owner or occupier informally to try to fix the issue.

If that doesn’t work, the first formal step under the Body Corporate and Community Management Act 1997 is for the body corporate to give a by-law contravention notice to the person it believes is breaching the by-laws.

The decision to give a by-law contravention notice can be made by the committee, or the body corporate at a general meeting.

The body corporate usually cannot take action to enforce the by-laws until it has sent a by-law contravention notice.

Types of contravention notices

Continuing contravention notice

The continuing contravention notice is our Body Corporate and Community Management form 10.

The body corporate can give a continuing contravention notice to an owner or occupier if it believes that they are breaching a by-law, and it is likely that this will continue.

An example of this type of breach is where an owner has made a change to the outside look of their lot without the approval required in the by-law.

The purpose of the notice is to ask the person to fix the problem within a certain time.

The notice must:

  • say that the body corporate believes the person is breaching a by-law
  • detail the by-law that the body corporate believes is being breached
  • explain how the by-law is being breached
  • set a time period for the person to fix the problem
  • explain that if the person does not comply the body corporate may

The continuing contravention notice can be used, or the body corporate can send a letter that says all those things.

Future contravention notice

The future contravention notice is our Body Corporate and Community Management form 11.

The body corporate can give a future contravention notice to an owner or occupier if it believes the person has breached a by-law and it is likely that the contravention will be repeated.

This notice would apply if, for example, an occupier often had parties which breached a noise by-law.The purpose of the notice is to ask the person not to repeat the breach.The notice must

  • say that the body corporate believes the person is breaching a by-law
  • detail the by-law that the body corporate believes is being breached
  • explain how the by-law is being breached
  • tell the person not to repeat the breach
  • explain that if the person does not comply with the notice the body corporate may

The future contravention notice can be used, or the body corporate can send a letter that says all those things.

Who the notice is sent to

The body corporate sends the contravention notice to the person they believe has breached the by law.

If the body corporate believes an occupier, who is not the owner, has breached the by-laws, the contravention notice must name the occupier and not the owner or property manager.

However, the body corporate must also give a copy of the notice to the owner. The body corporate must give a copy to the owner as soon as possible after giving the notice to the occupier.

Not complying with a contravention notice

If a person does not comply with a by-law contravention notice, the body corporate can decide to either

  • start proceedings in the Magistrates Court for the offence of failing to comply with the notice
  • apply for conciliation to enforce the by-law.

A fine of more than $2800 can be imposed by the Magistrates Court for failure to comply with the notice.

Owner or occupier enforcing by-laws

An owner or occupier can take steps to enforce the by-laws if they reasonably believe that:

  • another owner or occupier has breached the by-laws

and

  • it is likely the breach will continue or be repeated.

The owner or occupier can send an approved notice to the body corporate to their body corporate asking that the body corporate send a contravention notice to the person they believe is breaching the by-laws.

Taking it further

If the committee does not tell the owner or occupier who is making the complaint (the complainant) within 14 days that a contravention notice has been issued, the complainant can apply for conciliation against the person they believe is breaching the by-laws.

The complainant must try to fix the issue with the other person before they apply for conciliation. Before lodging an application you should read Practice Direction 6 about by-law enforcement applications.

If the body corporate advises that it has issued a contravention notice, but the complainant is not satisfied with their action to enforce it, the complainant can apply for conciliation against the body corporate.

A complainant usually cannot apply for conciliation about a by-law breach unless they have given their body corporate an approved notice about the breach.

An owner or occupier cannot start proceedings in the Magistrates Court.

Urgent by-law issues

In some cases, a body corporate can make a dispute resolution application without issuing a contravention notice.

In some cases, an owner or occupier can make a dispute resolution application without giving the body corporate a notice about the breach.

This would apply if:

or

  • the application is for the interim order of an adjudicator

and

  • there are ‘special circumstances’ which justify the dispute being resolved urgently — that is, if the alleged by-law breach is
    • likely to cause injury to people or serious damage to property
    • a risk to people’s health or safety
    • causing a serious nuisance to people
    • for another reason, giving rise to an emergency.

This article was contributed by the Commissioner for Body Corporate and Community Management.

If you would like further information or have a question about this article, please contact the Office of the Commissioner for Body Corporate and Community Management by phone on 1800 060 119 or by submitting an online enquiry at www.qld.gov.au/bodycorporatequestion