By-Laws and Legislative Compliance

By-laws are an integral part of the administration of a body corporate. While integral they can also be slightly daunting, which is in this article we break By-laws down part by part aiming to arm stakeholders with the knowledge to help them avoid unlawful by-laws and give them the tools to successfully administer their scheme.

We start off a new article series specific to by-laws explanting what they are legislated to provide for.

The relevant section of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) is 169(1) which provides:

The by-laws for a community titles scheme may only provide for the following—

(a)    the administration, management and control of common property and body corporate assets;

(b)    regulation of, including conditions applying to, the use and enjoyment of—

(i)     lots included in the scheme; and

(ii)    common property, including utility infrastructure; and

(iii)   body corporate assets, including easement areas relevant to common property; and

(iv)   services and amenities supplied by the body corporate;

(c)   other matters this Act permits to be included in by-laws.

Where many by-laws come unstuck is the emphasis of the important word, regulation. Adjudicators interpret regulation to mean by-laws cannot prohibit certain conduct.

In simple terms, this means that a by-law cannot ban or stop something from taking place and this is why:

1. there can be no buildings with a no pets by-law;
2. smoking cannot be banned in its entirety; and
3. short term letting and Airbnb cannot be banned (among other reasons we address in a later instalment).

Despite this requirement, regulation does not mean that a committee is powerless. If a by-law is carefully and properly drafted, a committee can be empowered with the necessary control to properly and reasonably administer the body corporate.

For example, the following by-law would be unlawful as it prohibits conduct:

An Owner or Occupier must not allow an auction of their lot to take place on scheme land.

However, if the by-law was amended to include the bold underlined words, it becomes lawful and gives the committee the ability to regulate auctions within the scheme:

An Owner or Occupier must not, without the prior written approval of the Body Corporate, allow an auction of their lot to take place on scheme land.

The by-law is now compliant as it does not prohibit the conduct, but allows the committee the ability to grant or refuse a request to hold an auction. However, when considering the request the committee just has to act reasonably when taking into account the details of the request including the impact on the scheme.

Look out for next month’s contribution where we will cover what cannot be included in a by-law and why. 

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