QLD: The golden rules of bylaw enforcement + Q&As

This will likely be a situation where your by-laws are applicable. Most by-laws will contain a provision about rubbish and an occupier’s responsibility in relation to that. ‘Occupier’ is the term used under strata legislation to describe a tenant.

So, check your by-laws. If there is such a by-law, it is up to the committee to enforce it. Here is an excellent resource from the Commissioner’s Office about enforcement of by-laws: By-law enforcement applications – PD6

If there is not a by-law, the provisions about nuisance and hazard under the Body Corporate and Community Management Act 1997 will likely apply.

Either way, the committee (or you, if it comes to that) can pursue these options through the Commissioner’s Office.

Your first step in all this is to approach the occupier to ask them to stop. It is unclear if this has already happened or not. Is it possible the occupier does not understand their responsibilities? Or is there an issue with the bins or garbage disposal at the scheme contributing to the problem? These might also be useful questions to consider.

You can also reach out to the landlord or property manager to raise the concern with them and see if they can get the occupier to cease this action. Contrary to popular belief, it is not necessary to involve the property manager and the body corporate can (and should) take action directly against the occupier. Sometimes, though, involving these other parties can get results.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #705.

Question: Can the committee decide not to enforce a by-law? If this is the decision, are they required to have minutes of a meeting about that decision?

As an owner in the body corporate, I have provided a form 1 to the committee because there is a by-law breach. A rubbish bin is stored on common property.

It is a clear breach of the by-law, but the committee has advised they will not enforce it.

I have asked for meeting minutes to see the votes but have been told there was no meeting.

Can the committee decide not to enforce a by-law? If this is the decision, are they required to have minutes of a meeting about that decision?

Answer: The body corporate can decide not to enforce a by-law, even if you believe there is a ‘clear’ contravention.

Yes, the body corporate can decide not to enforce a by-law, even if you believe there is a ‘clear’ contravention. The body corporate may not, for example, think there is sufficient evidence to support your allegation (remembering it is an allegation only at this stage).

When the body corporate makes this – or indeed, any – decision, yes, there should be a record of it. Committees can make decisions by a vote outside committee (for example, a decision made by an exchange of emails), and in that case, the decision should be ratified at the next committee meeting. Either way, there should be a record of the decision.

You can enforce the alleged by-law contravention yourself if you so choose. For more information about that process, take a look at this excellent flowchart from the Commissioner’s Office.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: If a renter breaches a by-law, our body corporate committee contacts the letting agent to advise them of the breach. Is it acceptable for the committee to also contact the owner to advise them of the tenant’s breach of the by-laws?

Answer: Enforcing by-laws against someone other than who you believe committed the contravention, will see the enforcement fail.

Respectfully, I don’t think you have got this process quite right.

When you allege a by-law has been contravened – and it is an allegation only at this stage – you also need to nominate the person you believe is committing the contravention.

That person is not the property manager or the owner. It is the tenant (or, ‘occupier’, as they are termed under Queensland strata legislation). In other words, enforcing by-laws against someone other than who you believe committed the contravention, will see the enforcement fail. Put another way: the body corporate ought to be enforcing the by-law directly against the occupier. The relationship is directly between the body corporate and the occupier in this instance, in other words.

There is absolutely benefit in ensuring both the property manager and owner are aware of the situation. Depending upon what by-law is at issue, those two parties may be motivated to take their own action against the occupier. To clarify though, by-law enforcement against an occupier is not dependent on those two parties. A reminder also that the body corporate ought to be informed of details of leases of more than 6 months, which includes details about the property manager, and that there is a monetary penalty for non-compliance with this requirement.

As always, it is a good idea to attempt to resolve this situation without having to resort to by-law enforcement. The by-law enforcement process is highly-prescriptive and if all steps are not followed, the process will fail. Moreover, it will take a long time – not to mention money and effort – to formally enforce by-laws.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #658.

Question: Under Queensland legislation, if a committee member sees a bylaw being breached, are they legally compelled to take action to stop the behaviour?

Under Queensland legislation, if a committee member sees someone breaching a bylaw, such as unreasonable behaviour on common property or damaging common property, are they legally compelled to take action to stop the behaviour? If so, this is a heavy burden that would often fall on volunteer retirees who live on site.

What powers do committee members have under Queensland law? Do officials have to enforce bylaws and correct behaviour?

How much can a body corporate official or manager rely on local authorities to back them up when the perpetrators may not be breaking state laws? Could the police be compelled to assist? An example is teenagers running wild, causing damage in the pool area, and disrupting other swimmers.

Answer: If there is sufficient evidence of a bylaw breach, then yes, the committee is meant to be following that through.

We’re talking about two separate issues here. Not everything which happens in a body corporate is a body corporate issue to address. There’s this idea that everything that occurs within the boundaries of a complex is up to the committee to address. Some things are not for the committee to manage, and some are a police matter, as with your example of teenagers running wild.

I’ve had this question before in different forms. The first thing to do is engage with the parents or guardians and find out what is happening here. In extreme circumstances, say something like child safety, you need to get the police involved.

Coming back to your first issue about bylaws. Yes, the committee does have a legal responsibility to enforce bylaws. If there is sufficient evidence of a bylaw breach, then yes, the committee is meant to follow that through. However, just because somebody alleges a problem with the bylaw doesn’t necessarily make it so.

If I say Nikki is causing noise on the scheme, and I want our bylaw enforced against her, that’s one thing. But I need to come up with evidence. I need to cough up the logbook of all the times that she’s caused me noise. Me saying Nikki is making a lot of noise is not enough, and committees are entirely within their rights to decline to do that.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: Are there any laws regarding dogs in a pool enclosure? The owners accompany the dogs, however, the dogs are unrestrained

I live in a complex of 12 units in QLD.

Are there any laws regarding dogs in a pool enclosure? I feel this is a safety and health issue.

The owners accompany the dogs, however, the dogs are unrestrained.

Our bylaws state that no dog is to be in common areas, but there is no enforcement of bylaws due to weak committee members.

Answer: Have you approached the dogs’ owners to voice your concerns?

Bodies corporate are obliged to enforce their by-laws. If you’re saying that your committee is declining to enforce the by-laws, then an owner or occupier (tenant) can take action themselves. The action could either be to compel the body corporate to do something, or to take action directly against the allegedly-offending owners.

If the issue continues, or there is a refusal to act, then you can consider dispute resolution proceedings through the Commissioner’s Office.

Have you approached the dogs’ owners to voice your concerns? That’s probably your first step, assuming it is safe to do so.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: Is there a time limit for a body corporate to issue a breach notice? Can they issue a breach notice for changes to a property that were carried out 2 1/2 years ago?

Answer: There is not necessarily a limit but the longer you leave it the less relevant a breach notice will become.

There is not necessarily a limit but the longer you leave it the less relevant a breach notice will become. The body corporate might want to think about what aim it is trying to achieve by issuing the notice and whether this is the best way to achieve that.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #625.

Question: Around 20 residents have been meeting in the pool area for drinks on a Sunday afternoon. Some residents have complained about the noise and the BC is talking about introducing a booking system to control the use of the space. Really! How can this be reasonable?

We live in a highrise consisting of 156 Units and there is a common area open 7 am to 9 pm consisting of a BBQ are next to a pool area.

Around 20 residents have been meeting in this space to chat, have nibbles and a drink together on a Sunday afternoon up to around 7 pm. The Body Corp have introduced new By-Laws regarding noise. The Body Corp says they have received complaints regarding the noise from the gathering. 3 units directly overlook this area and we feel these are the ones complaining about the noise.

The Body Corp have indicated that if this continues, they will evoke one of our ByLaws that states:

The Body Corporate may operate a system under which owners and occupiers may book for the use of the facilities, and the system may include rules to as to:

maximum time limits: and

how the booking list is operated and by whom.

How can the Body Corporate arrange a booking system for the use of a common area of the Pool and BBQ areas and dictate this to us?

Answer: Your use of the pool area might seem perfectly fine to you, but it might not be fine to others.

The Body Corporate has responsibility for managing common property. While generally that means the body corporate cannot prohibit access to common property, or discriminate between different types of people accessing common property (e.g., one rule for tenants and another for owners), it is reasonable for the body corporate to regulate access to common property. That might mean a booking system.

Think about it practically: let’s just say there is a common use tennis court for a 100-lot building. Managing use of the tennis court would be impossible without some kind of scheduling (especially if a lot of people there liked tennis!)

You also need to keep in mind that the body corporate is responsible for enforcing by-laws. It is typical there is a by-law about noise and nuisance. Even if your gatherings are during the day, if they are causing noise and nuisance – and I stress, I do not know enough at this stage to know if that is the case – then the body corporate are obliged to address that.

Putting all the above to one side for a moment, remember that you are in a community. There is give and take. Your use of the pool area might seem perfectly fine to you, but it might not be fine to others, and vice versa. I’m afraid that is part and parcel of living in a community titles scheme. If you want this situation resolved amicably, so that you and everyone else can get the best possible outcome (compromise), you would want to start discussing and talking with the body corporate about this situation. There might be any number of relatively simple solutions that can work. Also, a tip: maybe avoid using words like ‘dictate’. It’s unnecessarily emotive.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: How do we proceed when the Body Corporate is breaching a bylaw? A pool pump is so noisy it disturbs lot owners day and night.

How do we proceed when the Body Corporate itself is breaching a bylaw?

For example, a pool pump is so noisy that the sound penetrates into one of the units at all hours of the day and night. The noise is disturbing the occupiers of that unit. The noise level is 20dB above ambient noise levels, which is in breach of the EPA standard of acceptable noise.

The Body Corporate and Strata Committee refuse to take appropriate actions to remediate the problem. They won’t even accept a basic noise analysis report conducted by the occupier of the unit, which proves the noise pollution exists.

In this scenario, the Body Corporate is the “Owner” of the common property and therefore the owner of where the noise is coming from, and therefore in breach of the Noise bylaw.

Answer: A body corporate cannot breach by-laws. By-laws are for the body corporate to enforce to regulate the use of common property and lots by owners and occupiers.

A body corporate cannot breach by-laws. By-laws are for the body corporate to enforce to regulate the use of common property and lots by owners and occupiers.

However, that does not mean the occupier is helpless. A body corporate has a statutory maintenance obligation to keep common property in good condition. If an element of the common property (such as the pool pump) is so noisy that it is not in good condition (for example, because it contravenes some form of EPA standard) then the body corporate would be obliged to fix the noise issue.

Alternatively, an affected owner or occupier could propose that the body corporate carry out an improvement to the pool filter such as upgrading it to one which is quieter or installing an acoustic box to dampen the noise.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #598.

Question: In our small building, a visitor continuously breaches bylaws. The committee has disbanded. As a tenant in the property, what can I do?

I am a tenant in a building of six units. An owner’s husband, who doesn’t live here, is continually breaching the bylaws. The Body Corporate Committee disbanded, as it was too difficult to deal with him.

He sells used cars on the street, parks multiple used cars out the back of the property, keeps the security doors wedged open, keeps the security garage door open, let’s their cat urinate and defecate in common areas, and stores flammable materials in his garage space, which is now overflowing. What can we do now that there is no body corporate?

Answer: The body corporate is supposed to enforce by-laws. If there’s no committee to do that, then you as an individual can take action directly against the offending person.

First up, you have my empathy. This sounds like a really unpleasant situation.

So, what to do? As a tenant, you are known as an ‘occupier’ under strata legislation and you have rights. One of those rights is to have by-laws enforced, as well as issues relating to nuisance. You would have to think what is going on here, based on your description, would be a nuisance and he is likely breaching several by-laws.

The body corporate is supposed to enforce by-laws. If there’s no committee to do that, then you as an individual can take action directly against the offending person. There is a set process for you to follow to do this and I suggest you contact the Office of the Commissioner for Body Corporate and Community Management to get some assistance to do that.

Put that to one side for a minute and think about this: not everything that happens in strata, is a strata problem to solve. You could raise issues about the fire doors with Queensland Fire and Emergency Services. You could raise issues about the cars with the local Council. You could also raise issues about flammable issues with the relevant authority. My point is, try to address the problem from other angles, including speaking with agencies such as the Residential Tenancies Authority or Tenants Qld.

Finally, start talking to the other residents, be they owners or occupiers. The things you describe would surely be bothering them. If you are on good terms with your landlord or real estate agent, you could also bring it up with them. While I totally appreciate that things are seemingly happening there because of the apathy involved, there are things you can do to make it different.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: Our committee has sent contravention notices to an owner while other residents who are performing the same or other breaches of the bylaws are not dealt with. The committee does not seem to be acting reasonably. How do we deal with a situation like this?

Answer: I would suggest sending a BCCM Form 1 to the committee.

A committee has an obligation to act reasonably and to enforce by-laws. It would be hard to justify selectively enforcing a by-law against some owners and not others.

I would suggest sending a BCCM Form 1 to the committee. This then gives a timeframe for the committee to take enforcement action. If enforcement action does not take place, you can then take enforcement action directly.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #582.

Question: What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?

My Body Corporate is a standard module. My Neighbour breached a by-law. I issued a form 1 to the Body Corporate and the Body Corporate followed up a form 10 and 11 to the accused with 14 days to comply. 14 days passed, and the accused continued with the by-law breach.

1 month on from the issuing of the contravention notices the accused was still breaching the by law.

The Body Corporate committee held a committee meeting with this item on the agenda. At the meeting, the committee acknowledged the breach was continuing and stated they were not prepared to spend Body Corporate money to progress the case through BCCM.

What are the legal obligations of the Body Corporate to enforce the by-laws and what can be done to get the Body Corporate to act within those legal obligations?

Answer: Legislation requires that the body corporate must (not may) enforce its by-laws.

While I appreciate the body corporate’s desire to save money – after all, that is money that you will foot, as part of your levies – frankly it doesn’t have a choice. Legislation requires that the body corporate must (not may) enforce its by-laws. In this case, it appears the committee has agreed there is evidence of the breach, so it must enforce.

Given it has apparently decided not to, you have two options. You can either dispute their decision to not enforce, or you can enforce the breach directly against the accused. Both options will end up in my former Office (The Commissioner’s Office). On the latter option, there are a few steps you firstly need to undertake (e.g., you must try and resolve the matter with them directly).

You need to be aware also that it will take several (many) months for the outcome to be decided. With that in mind, and what I’ve said above about cost and process, I think it is not a bad idea to reflect upon the by-law breach and the impact it is having upon you. In other words: is it going to be worth your effort? Sorry to put it in such pessimistic terms, I am only trying to be practical.

If one of your aims is to hold the body corporate committee accountable for not pursuing this, then the best you could hope for would be that if this goes to adjudication, the adjudicator makes an adverse finding against the committee for their (apparent) inaction, as happened in the recent, high-profile smoking decision in Queensland. That said, there’s no punishment, fine, sanction or penalty which applies, other than the fact that adverse finding is on the public record. I’m not sure how that would help you though.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: How do we escalate a bylaw breach notice if the behaviour continually occurs.

We have noisy and abusive neighbours. Our Body Corporate Committee states that if a bylaw is continuously breached and a notice is sent to the offending party, they have 7 days to rectify their behaviour. If they reoffend after 7 days, corrective action has to start again from the beginning.

Therefore, in our building, the same bylaw can be breached by the same party numerous times. As long as the behaviour occurs outside of the 7 day period, no further action other than an initial warning can be taken by the committee. Is this correct?

Answer: If a future contravention notice is used, then the neighbour can be prosecuted if they breach the by-law again, within 3 months of receipt of the future contravention notice.

No, it’s not correct. Two types of by-law breach are addressed by the Act in Queensland. Enforcing by-laws involves issuing a by-law contravention notice to the offender/s. There are two types of notice, one for each type of breach.

The first is a continuing contravention notice and the body corporate issues that notice when it reasonably believes that an occupier is contravening a provision of the by-laws and the circumstances of the breach make it likely that the contravention will continue. A good example is a by-law that requires body corporate approval for external improvements. If a lot owner erects a pergola without approval, then it is likely the breach of by-laws will continue.

Contrast this to the other type of notice, being a future contravention notice. A body corporate gives one of those when it reasonably believes that an occupier has contravened a provision of the by-laws and the circumstances of the breach make it likely that the contravention will be repeated. A good example is a by-law that prohibits parking on common property, except in a designated space. If a lot owner regularly parks their car in breach of the by-law, the breach does not happen continuously, it happens repeatedly.

So, as you can see, using a continuous contravention notice to address a noisy and abusive neighbour, is like trying to hammer in a nail with a screwdriver – it’s the wrong tool for the job. If a future contravention notice is used, then the neighbour can be prosecuted if they breach the by-law again, within 3 months of receipt of the future contravention notice.

As to compliance with a continuing contravention notice, and the 7 day furphy, let’s assume that the noisy and abusive neighbour has rigged up a loudspeaker which plays loud rock music, interspersed with a voiceover spouting abuse at the other lot owners. After being asked to turn it off, the neighbour refuses. In that instance the body corporate would issue a continuous contravention notice. Within that notice the Body Corporate has to provide a period of time for the neighbour to comply with the by-laws, which must be reasonable in the circumstances. In this case, that would not be 7 days! I would think that an hour would be more than sufficient to enable the neighbour to turn off the loudspeaker. If the neighbour turned it off, waited 5 minutes and turned it back on, then the body corporate would move to issue a future contravention notice. If the music is turned back on after that notice was issued, then the body corporate could prosecute the neighbour in the local magistrates court, seeking a fine of up to $2757 (for an individual), plus costs.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in Strata News #549.

Question: Our Committee would like to enforce by-laws that ban skateboards, scooters, etc in the complex. We have teenagers using our speed humps as jumps for their skateboards. Please advise, what can I do as an owner?

Answer: By-laws are meant to regulate rather than prohibit

Interesting question. I can honestly say I’ve not been asked this before.

I can see you are coming from a place of good intentions. That said, by-laws are meant to regulate rather than prohibit and the general rule of thumb is that a by-law that purports to outright ban something, would be found to be invalid if challenged in my former Office (Commissioner).

You’ve asked what you can do as an owner, although you’ve also said ‘our committee’. As an owner, or as part of the committee, you can put a motion to a general meeting putting up your suggested by-law for approval. I’d urge you to consider the wisdom of that, in light of what I’ve said above, as it might end up being a big waste of your time (and money).

If you are determined to proceed down that path, I’d suggest you start asking around other owners to see if they’d support it as well. No point in putting up a motion that is doomed to fail. And I’d also suggest seeking some legal advice about it to ensure wording is the way it should be to maximise chances of passing.

Your other option is to consider whether existing by-laws are already being breached, or whether nuisance provisions might be being breached. The committee is responsible for enforcement in either case. You’d need evidence, particularly if you initiated any formal action, and that might be in the form of a log of dates, times and what was occurring.

Might I suggest your better approach is to discuss either with the offending parties or their parents? That might be a far more cost-effective and timely path to follow.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in the October 2021 edition of The QLD Strata Magazine.

Question: Our caretaker will not enforce bylaw breaches. As a lot owner, can I issue a Form 1 to start breach proceedings?

Our caretaker refuses to notify residents they are parking on common property without committee permission. He refuses to passing offenders information onto the committee for action. The committee wont take any action against the caretaker.

As an owner, can I lodge an official complaint with the Body Corporate Commission or do I submit a form 1 to the committee seeking some action? What would be the correct procedure?

Answer: There are a number of steps body corporates can take to enforce by-laws starting with informal discussions or warnings advising of the breach.

The caretaker not assisting may be frustrating, but their role here is something of a red herring as enforcement of by-laws does not require any interaction with that office.

There are a number of steps body corporates can take to enforce by-laws starting with informal discussions or warnings advising of the breach.

After that, the first formal step is for a by-law contravention notice to be issued. The decision to do this can be made by the Committee or the Body Corporate at a general meeting. A continuing contravention notice can subsequently be issued if the matter is not resolved.

If a person does not comply with the notices, the Body Corporate can then start proceedings in a magistrates court or apply for conciliation to enforce the by-law.

For individual owners seeking to enforce the by-laws they can send a notice of the contravention, a Form 1, to the Body Corporate asking that the Body Corporate send a contravention notice to the person they believe is breaching the by-laws. If the Body Corporate doesn’t tell the owner or occupier who is making the complaint within 14 days, the complainant can apply for conciliation against the person they believe is breaching the by-laws.

The government website has a detailed explanation of the steps and options available to owners in these situations: Queensland Government: Enforcing by-laws

By-law breach notice forms can be found at: Queensland Government: Body corporate by-laws

Owners are advised to collate as much clear evidence as possible when making a by-law contravention submission. This could include photos and audio files as appropriate.

Going back to the caretaker you may want to check their contract carefully to check their scope of works and what action they are supposed to take when the committee directs them to. Their position may be technically correct, but perhaps there is another technically correct position that could lead to them taking more action.

As this issue involves parking it is also worth noting that parking is a constant problem at many sites and sending out contravention notices may be only one part of a wider solution. It’s quite likely that the scheme should consider adding no parking markings to the ground, additional signage or bollards to try and control parking behaviour.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #499.

Question: Our committee is struggling to enforce bylaws. Lot owners believe the committee has no right to have a say in what they do with the property. Are our bylaws enforceable?

Our body corporate is a standard format plan so lot owners are responsible for the maintenance and insurance costs of the building. Our body corporate bylaw for lot improvements is pretty standard:

An Owner or Occupier shall not alter the external appearance, finish or colour of the building on the Lot nor add to, extend or cover the Lot in any way without the prior written approval of the Body Corporate.

The committee is struggling with lot owners not getting written approval or not waiting for approval and commencing work as soon as the application has gone in. The latest and loudest opinion of lot owners is telling the committee we have no right to have a say in what they do with the property.

As a committee, we invest quite a bit of our own time into researching and trying to make decisions in the interest of all owners, not just the applicant. Also, we have a statutory obligation to uphold the bylaw but is becoming very disheartening when our efforts are wasted.

Is our bylaw simply unenforceable and if so should we remove it at the next general meeting?

Answer: If a by-law has been properly passed at a general meeting and recorded with the Titles Office then not only is it in force, the committee must – not maybe, possibly or optionally – enforce it.

There is a world of difference between a properly decided-upon motion and a group of owners articulating what they think their rights are. If a by-law has been properly passed at a general meeting and recorded with the Titles Office then not only is it in force, the committee must – not maybe, possibly or optionally – enforce it. Your efforts at enforcing by-laws should never be ‘wasted’: remember, by-enforcement is not dependent on the alleged offending party accepting the breach. If you’re not entirely sure if the correct enforcement process has been followed (and to be fair, it is quite a prescriptive process), you may want to seek some legal advice.

If owners feel a by-law is unreasonable, then they have the option to have that challenged in my former Office. Up until that point though, the by-law remains in place and to be blunt, I’m afraid that group of owners is wrong: they are part of a community and the body corporate, via its committee, absolutely has the right to regulate what they do with their property, to the extent it has an impact on other owners or the common property.

Putting that to one side for a moment, do you know when was the last time you had your by-laws reviewed? If it’s been a while, or you have some genuine concerns that this by-law (or any other) is problematic, it might be prudent to consider getting them reviewed.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #477.

Question: Without any notice, the Body Corporate used bolt cutters to remove bikes etc we had stored under the building. Can we be compensated for these items?

I had some items (bikes etc) chained up under the building where I rent a unit. The Body Corporate used bolt cutters to remove our items without any notice. They claim the items were taken to the dump.

What rights do we have as tenants? Are we within our rights to be compensated for our forcibly removed or stolen equipment?

Answer: If items are left on common property in contravention of the Scheme’s by-laws, there is a process to follow.

The correct process for the Body Corporate to follow, if items are being left on common property in contravention of the Scheme’s by-laws, is for the Body Corporate to:

issue a by-law contravention notice to the relevant occupier requesting that they remove the item from the common property;

if the item is not removed from the common property by the occupier, to file a conciliation application with the Commissioner’s Office regarding the contravention; and

if the matter is not resolved at conciliation, file an adjudication application with the Commissioner’s Office seeking orders that the item be removed from the common property.

While the Commissioner’s Office has exclusive jurisdiction regarding disputes between a Body Corporate and an occupier, it arguably does not have the power to order the Body Corporate to compensate you for the cost of the lost equipment. Accordingly, any legal action in that regard may need to be pursued separately through QCAT or court (depending on the amount sought).

Jessica Stanley Mathews Hunt Legal E: jessica.stanley@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #470.

Question: What can be done when the Body Corporate Committee doesn’t enforce by-laws/regulations?

What can be done when the Body Corporate Committee doesn’t enforce by-laws/regulations?

They have been extremely “selective” – eg, enforcing some owners to comply with complex conditions for internal renovations, but totally ignoring another owner who didn’t even apply for permission to do similar renovations.

Also, there have been different Conditions of Approval from the Body Corporate Committee, for the same work to be done, by different owners.

Answer: The committee has an obligation to enforce by-laws, but only when it is reasonable to do so.

The committee has an obligation to enforce by-laws, but only when it is reasonable to do so.

The committee cannot selectively choose to enforce by-law contraventions just because of who the occupier is, but can do so if there is insufficient evidence or it would be unreasonable for another reason.

If someone is concerned about another person’s by-law contravention notice it might be useful to send the committee a BCCM Form 1 to formally request the by-laws to be enforced.

If the by-laws still aren’t enforced after sending the BCCM Form 1, it then allows the concerned person to enforce the by-laws directly.

Similarly, there is no requirement for conditions of approval to be the same – but they need to be reasonable in each individual circumstance.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #388.

Question: I have bought into a Scheme, and the seller had a fence that breaches the by-laws. I haven’t rectified the breach. Am I now breaching the by-laws?

Answer: If the fence was erected by the previous owner in breach of the by-laws and you have not rectified the breach, then you are in breach of the by-laws.

If the fence was erected by the previous owner in breach of the by-laws and you have not rectified the breach, then you are in breach of the by-laws.

Even if the previous owner told you the fence is approved and you relied on that, you still have to rectify the breach if the fence was in fact not approved. Although, you may have remedies against the seller.

The Body Corporate has a duty to enforce the scheme by-laws and as the current owner of the lot, the Body Corporate may issue a continuing contravention notice to you. If it does, you will need to obtain the necessary approval, or if that can’t be achieved, remove the fence.

For any future purchase we recommend undertaking sufficient due diligence enquiries, including liaising with the Body Corporate directly, to determine whether approval for improvements has been granted. This is much safe than relying on what the previous owner tells you!

Jeremy Brown Mathews Hunt Legal E: jeremy.brown@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #384.

Question: I’ve received a letter from Body Corporate about breaching visitor parking. It contains a photo obviously taken by another resident. How is this a lawful way to enforce the bylaws?

I am a tenant in a Qld townhouse complex. I recently received a letter from the body corporate reporting one of my visitors for parking on common property behind my garage door. The letter contained a photo of my visitor’s vehicle shown parked outside my garage with licence plate visible stating date & time recorded. It also stated it was noted that the visitor car park near me was available at the time.

On this particular occasion a guest had popped in for 5 mins to collect an item & had pulled up outside the garage due to rainy weather. Whilst I appreciate the need for the body corporate to notify me of this parking breach, what disturbs me is that it appears the photo was taken by another resident in the complex who likes to takes matters into their own hands to monitor my guests comings and goings and report any breaches of parking to the body corporate.

My unit is in the direct line of sight to this other resident’s unit, to which I feel I am being unfairly monitored as opposed to the remaining units outside this person’s visual reach.

What are my rights & guests rights in this instance as to our privacy of having my visitor’s details noted & photographed? As far as I am aware this photo was not taken via video surveillance within the complex as there is no signage to declare such cameras in use on site.

Answer: This might appear over vigilant but it is lawful. If the body corporate doesn’t deal with issues like this when they happen it turns into a free for all.

This might appear over vigilant but it is lawful.

The car was parked outside the parameters of the by-laws. The body corporate has a statutory obligation to enforce by-laws.

At least it has happened this way than an abusive knock on the door or a by-law breach notice. I have seen a lot worse ways to handle issues like this.

I think if you put yourself in the body corporate’s shoes, what happens if they don’t deal with issues like this when they happen? It turns into a free for all.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #320.

Question: I have been issued a BCCM Form 1 & BCCM Form 10 at the same time for the same “breach” without any prior notices in any form. Is this common bylaw enforcement practice?

Answer: Form 1 doesn’t need to be sent with Form 10 but there is no issue in doing so.

BCCM Form 1 – Notice to body corporate of contravention

BCCM Form 10 – Continuing contravention notice

The BCCM Form 1 is the complaint from the complaining owner to the body corporate and the BCCM Form 10 is the actual breach notice from the body corporate to the offending owner.

Form 1 doesn’t need to be sent with Form 10 but there is no issue in doing so.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #272.

Question: When a committee has been to conciliation over breach of bylaws and still allows the breach to occur, what steps can residents take to ensure ByLaws are enforced?

We have been told by a resident that the Bylaws cannot be enforced, but every piece of information I have looked says different. What is the correct information?

Also, what happens when a committee has been to conciliation over a breach of bylaws and then still allows the breach to go ahead? What steps can residents take to ensure ByLaws are enforced by the committee?

Answer: By-laws can definitely be enforced as long as they are lawful.

By-laws can definitely be enforced as long as they are lawful. There are a number of restrictions on what by-laws can say though.

Residents can ensure by-laws are appropriately enforced by:

Sending a form 1 to the committee with sufficient evidence.
If the committee doesn’t take action to enforce the by-law, the resident can then:
- Enforce the by-law themselves in the Commissioner’s Office; or
- Seek orders that the committee enforces the by-law in the Commissioner’s Office.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #256.

Question: One unit owner does not clean up after their dog. It is part of the bylaws. Who is responsible for bylaw enforcement?

About 18 months ago person buys ground floor unit with no external space allocated to the lot

After moving in and without any consultation with the Body Corporate, owner announces they have a large dog

An amendment to the By-Law to allow the owner to keep the dog is drafted and presented at our AGM 2016 and gets up 4-1. With conditions attached including the dog not to be unsupervised on common property and any “accidents” to be cleaned up immediately.

This is not happening. The dog comes and goes from the unit at will unattended and does his business anywhere on the grassed common.

It stays there for hours and sometimes days whilst gathering extra deposits

Taking this up initially with our Body Corporate Managers, the unit owner accused me of lying and exaggerating so I sadly was forced to gather photographic evidence

We have spoken to the owner face to face several times and despite agreeing to clean up… nothing happens

Body Corporate Managers, the chairman and other lot owners appear to ignore the situation and bury their heads in the sand.

Body Corporate Managers say they can write a letter to the unit, at a cost!

It is not a nice experience having lunch or drinks on the balcony and lumps of fly blown doggy do greet the eye

It’s part of the by-laws! I am happy with unit life and am happy to abide by the by-laws.

Is there anything we can do that we have not already done?

Who is responsible for the enforcement of the bylaws?

Anything you may suggest would be greatly appreciated.

Answer: A body corporate has a statutory obligation to enforce by-laws. The committee must carry out bylaw enforcement.

A body corporate has a statutory obligation to enforce by-laws. The committee must do that.

Without adopting a scorched earth policy in terms of issuing a breach first up, it should formally communicate with the owner about what is required and then step up if needed via the formal by-law enforcement process and if need be, go to the extent of getting an order from the Commissioner’s Office about the conduct.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

Have a question about bylaw enforcement in QLD or something to add to the article? Leave a comment below.

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