This article is about the requirements and process for enforcing by-laws.
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.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753
This post appears in Strata News #580.
This article has been republished with permission from the author and first appeared on the Mahoneys website.
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