This article is about helping committees and body corporate managers to help avoid unlawful by-laws.
In part 1 of our by-law series, we discussed what by-laws are legislated to provide for.
In part 2 of our by-law series, we discussed the first 4 limitations of what by-laws cannot provide for.
Sections 180 and 181 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) set out 8 limitations for by-laws. In part 3 we address, with examples, the final 4 limitations of what by-laws cannot provide for.
Limitation 5
“A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.”
This limitation is commonly contravened as there are many by-laws which seek to:
- impose costs upon owners or occupiers for by-law breaches; or
- set a levy recovery process.
These by-laws are all invalid. A by-law cannot create a monetary liability for an owner or occupier – unless it relates to an exclusive use by-law.
The BCCMA has its own specific mechanisms for monetary liabilities to be recovered from owners or occupiers. Those mechanisms can be enforced separately to any by-law enforcement action.
Limitation 6
“A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.”
This is the catch-all that is often disputed in the Office of the Commissioner for Body Corporate and Community Management.
Like any reasonableness argument it is often subjective as to whether a particular by-law is unreasonable.
However, some common by-laws that are invalidated on this basis include:
- by-laws requiring all pets to be carried across common property irrespective of their size;
- by-laws imposing a particular hard flooring rating is attained (if the specified rating is unattainable); and
- by-laws that ban otherwise lawful conduct (which is similar to what we discussed in part 1).
Limitation 7
“A by-law must not include a provision that has no force or effect under the Building Act 1975, chapter 8A, part 2.”
This is a very specific limitation that prevents a by-law seeking to preserve the aesthetics of a building at the expense of interfering with the sustainable housing provisions of the Building Act 1975 (Qld) such as:
- roof colours with certain solar absorptance values;
- energy efficient windows;
- house orientation, floor area and minimum bathroom / bedroom requirements;
- solar hot water or solar panel installations.
Limitation 8
Section 181 of the legislation provides that a by-law cannot interfere with the rights of a person with a disability who has the right to be accompanied by a guide, hearing or assistance dog to:
- be on the common property or a lot; and
- keep the dog in their lot.
Conclusion
Too often by-laws do not comply with limitations contained in sections 180 and 181 of the BCCMA.
Unfortunately for all involved, this only comes to light when a committee tries to enforce an unlawful by-law. By then it is too late and little can be done until the by-law is corrected.
Please contact our dedicated body corporate team if you need any assistance with body corporate by-laws for a scheme. We can review your by-laws for compliance and help the committee proactively address any unlawful by-laws.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753
This post appears in Strata News #559.
This article has been republished with permission from the author and first appeared on the Mahoneys website.
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