QLD: Q&A Approving the Community Management Statement (CMS)

These Q&A are about the process involved in approving the community management statement.

Table of Contents:

• QUESTION: The definitions in our CMS are different to the wording in our bylaws. Does the definition in the CMS override the by-laws or do we need to change the by-laws?
• QUESTION: We are a staged development and our 6th and last stage is nearing completion. We’ve received the CMS, but are reluctant to sign off because of numerous issues on common property. What is our position?
• QUESTION: I own a duplex built in 2012. I’d like to strata title the property and sell one of the units. What are the considerations I need to be aware of to set up the strata title?
• QUESTION: Does the Body Corporate have to vote on each bylaw separately when voting for a new community management statement or do they vote for the Bylaws as a whole? Do the bylaws have to be set out in the motion and resolution?
• QUESTION: Our CMS has been changed many times, but correct record keeping procedures have not been followed. Pages have been left out of the document and changes included that may not have followed the correct lodgement process. How do we fix this?
• QUESTION: What do we need to do to change our bylaws and how much will this cost?
• QUESTION: Can an Adjudicator order that a by-law be amended and a new CMS lodged without either the approval of the Committee or the Body Corporate?
• QUESTION: Our Committee offered a new CMS with the new by-laws that the Body Corporate approved at last year’s AGM, but they did not provide a copy of the old by-laws for comparison with the new one they wanted registered. Is this usual?
• QUESTION: Our Body Corporate signed, sealed and executed a new Community Management Statement without consultation with Owners. Shouldn’t a new CMS be approved at a Special Meeting?

Question: The definitions in our CMS are different to the wording in our bylaws. Does the definition in the CMS override the by-laws or do we need to change the by-laws?

We are under the accommodation module/Building Format plan. When our CMS was submitted there was a list of definitions. The wording in the definitions is different to the wording in the by-laws. For example; the definitions state “a vehicle” whereas the by-laws state “a registered vehicle”.

Without going into the problems this has caused the committee with differing opinions/interpretations, does the definition override the by-laws? Or do we have to go down the path of reviewing the by-laws with a general meeting to approve the proposed changes, new CMS etc.

Answer: There is not necessarily one set of words that overrides the other.

This appears to be a matter of construction and interpretation. There is not necessarily one set of words that overrides the other as it will depend on:

1. How the definitions clause has been drafted;
2. How the by-law itself has been drafted;
3. Whether there is any guidance in the by-laws as to interpreting them; and
4. Importantly, the specific issue at hand.

If we were able to review the entirety of the by-laws and have some detail around the issue at hand we could provide our view on how it should all be interpreted.

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

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

Question: We are a staged development and our 6th and last stage is nearing completion. We’ve received the CMS, but are reluctant to sign off because of numerous issues on common property. What is our position?

We are a staged development and our last stage of 6 stages is nearing completion. We have received the proposed new CMS to include this new stage however we are reluctant to sign off as there are numerous issues of incompleteness relating to what would be common property.

Because of past issues with the developer promising to fix/complete things in previous stages we are wondering at what our position is regarding the signing off of this new CMS.

Answer: Ordinarily this requires a resolution without dissent but if the CMS is drafted to include specific development rights in schedule B, this avoids the need for a resolution without dissent and creates an obligation on the committee to sign the new CMS.

It is not uncommon for some bodies corporate to be developed progressively in stages.

This is achieved by recording a new survey plan and CMS at the titles office that lists the new lots that have been created and to be included in the scheme. The titles office will only accept a CMS if it is signed by the committee.

Ordinarily this requires a resolution without dissent but if the CMS is drafted to include specific development rights in schedule B, this avoids the need for a resolution without dissent and creates an obligation on the committee to sign the new CMS (provided the changes to the CMS are consistent with the specific development rights in schedule B).

Once the committee is given a copy of the CMS it has 30 days to sign it. Failing to meet this requirement can lead to the imposition of fines.

If there are issues with common property works being incomplete, the body corporate should check to see if the new CMS is consistent with schedule B. Otherwise, it would be a matter for the stage 6 potential owners to require the works to be completed (provided there is such a right in their purchase contracts) or for council to require this as part of their development approval conditions (which is more likely).

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

This post appears in Strata News #597.

Question: I own a duplex built in 2012. I’d like to strata title the property and sell one of the units. What are the considerations I need to be aware of to set up the strata title?

Answer: Your Council is a great place to start as Councils across Queensland have varying rules around dual occupancy dwellings.

A quick check of the planning requirements for your Council is a great place to start as Councils across Queensland have varying rules around dual occupancy dwellings. From there you will need to lodge a Plan Sealing application with your local Council. For the plan sealing application you will need a copy of the original development approval, a survey plan (SP) and a Community Management Statement(CMS) and ensure all outstanding Council charges are paid.

It is important to note that the Council will check to make sure that all conditions from the development application have been complied with and you may need to alter or correct any items that aren’t compliant prior to Council approving the application.

Jordan Holman
Associate Director
Town Planning Alliance
E: info@tpalliance.com.au

This post appears in Strata News #582.

Question: Does the Body Corporate have to vote on each bylaw separately when voting for a new CMS or do they vote for the Bylaws as a whole? Do the bylaws have to be set out in the motion and resolution?

Answer: It depends on how the motion is structured. It is optional to have it structured in a way that approves the changes one by one or in one go. The details of the changes need to be set out in the motion or the material sent with the agenda (that the motion refers to).

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

This post appears in Strata News #472.

Question: Our CMS has been changed many times, but correct record keeping procedures have not been followed. Pages have been left out of the document and changes included that may not have followed the correct lodgement process. How do we fix this?

Our CMS has been changed approx 10 times over 20 yrs. When supplying a copy to an owner recently, I found 2 pages had been left out of the document. On checking other past documents more non approved changes were found. Owners have voted to accept the changes at General meetings but it seems owners do not proof 44 pages from one CMS to the next and as some have been produced by Lawyer’s owners have trusted changes to be correct.

Who should be responsible, the lodger of the CMS, the committee who requested, approved and recommended changes or owners who accepted by majority vote?

Would leases and sales contracts that have included a CMS as part of lease/sale be affected?

Answer: These errors do happen from time to time so the committee should arrange for a new CMS to be recorded reflecting the correct position.

The CMS should reflect only the changes that have been properly approved by the body corporate. These errors do happen from time to time so the committee should arrange for a new CMS to be recorded reflecting the correct position. Depending on the cause for the error the committee may be able to arrange for the lodger to correct this at a reduced (or no) cost.

This is unlikely to affect any existing sales contracts or leases but it will depend on the specifics of the change and the specifics of the contract or lease.

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

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

Question: What do we need to do to change our bylaws and how much will this cost?

We live in a community titles scheme in QLD of 13 townhouses and maybe looking to upgrade and change our By-laws.

1. Who actually changes the Bylaws for us and what do we have to do?
2. Is there a set cost or an average cost that can be explained to owners?

Answer: Changes to the by-laws requires a motion to be approved by a special resolution at a general meeting. The cost to register a new CMS is approximately $100.

The current by-laws for the scheme are contained within the last community management statement registered for the scheme (‘CMS’). Changes to the by-laws requires a motion to be approved by a special resolution at a general meeting. If a proposed change relates to exclusive use, then a resolution without dissent is required. If the required resolution is passed, the new by-laws must be registered within three months from the date that the change to the by-laws is approved.

The cost to register a new CMS is approximately $100. Once the new by-laws are registered:

1. DNRM will provide you with a registration confirmation statement; and
2. the new by-laws will take effect.

Recording new by-laws does not mean that they are valid. Therefore, a body corporate should consider engaging a lawyer that specialises in body corporate law to prepare the new by-laws with consideration to:

1. any concerns of the body corporate regarding their current by-laws; and
2. changes to the legislation.

The cost of obtaining legal advice in respect of proposed new by-laws will vary on many factors, including how many changes are required and the size of the current CMS.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in Strata News #430.

Question: Can an Adjudicator order that a by-law be amended and a new CMS lodged without either the approval of the Committee or the Body Corporate?

Answer: Yes. An adjudicator can order that a by-law be amended or removed and that a new CMS is registered to record the change.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in Strata News #410.

Question: Our Committee offered a new CMS with the new by-laws that the Body Corporate approved at last year’s AGM, but they did not provide a copy of the old by-laws for comparison with the new one they wanted registered. Is this usual?

Answer: There is no obligation for the committee to include the currently registered by-laws with an AGM agenda when proposing changes to the by-laws.

Although it may be preferable to do so, there is no obligation for the committee to include the currently registered by-laws with an AGM agenda when proposing changes to the by-laws.

A copy of the currently registered by-laws can be obtained from the body corporate, via the body corporate manager if the scheme has one.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in Strata News #408.

Question: Our Body Corporate signed, sealed and executed a new Community Management Statement without consultation with Owners. Shouldn’t a new CMS be approved at a Special Meeting?

At the beginning of the year, our Body Corporate signed, sealed and executed a new Community Management Statement without consultation with Owners. I am not aware that a resolution was made to that effect.

We were not advised of this happening at the time, either before or since the event. A couple of owners only happened to see the CMS document on the portal of the body corporate some months later.

In my research I thought I had seen that a new CMS had to be approved at a Special Meeting and then acted on within 3 months of the meeting.

Answer: The resolution type required depends on the reason for the new CMS, see section 62 of the Act.

“A new community management statement (‘CMS’) requires the approval of the Committee or the Body Corporate. The resolution type required depends on the reason for the new CMS, see section 62 of the Act.

I note that you are not aware of a resolution authorising the registration of the new CMS. The first place to start in respect of this issue will be to request a copy of the relevant minutes which approved the registration of the new CMS. If the minutes exist, they must be provided to you within 7 days, if you comply with section 205 of the Act.

If there are no minutes authorising the registration, or the record is not provided to you within 7 days, and you are unable to obtain a satisfactory answer from the Body Corporate Manager and/or Committee, I recommend that you proceed to conciliation in the Commissioner’s Office.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in Strata News #387.

If you have a question about unapproved community management statements or something to add to the article, please leave a comment below.

Embed

Read More:

• QLD: Making Sure Your Bylaws are Correct
• QLD: Is Your Body Corporate Overcharging?
• QLD: Q&A How Do We Deal With Bullying Emails From a Lot Owner?

Visit our Strata Committee Concerns OR Strata Legislation Queensland pages.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.