This article about the history of QLD strata legislation and what has, and hasn’t, changed has been supplied by Michael Kleinschmidt, Bugden Allen Graham Lawyers.
Twenty-five years, Queensland leapt into the future with the commencement of the Body Corporate and Community Management Act 1997.
The Act introduced concepts that were as revolutionary as the Torrens system1, something property lawyers have good reason to adore. To wit, rather than having to crawl through dusty ‘chain of title’ documents, up to hundreds of years old, we could all now rely on the fact that if a transfer was registered in the Freehold Land Register, then the transferee was the owner. Full stop .
The BCCM Act did the same thing, for by-laws. Under the old Building Units and Group Titles Act 1980 every ‘plan’ started with a set of by-laws contained in a schedule to BUGTA. Amendments, including wholesale replacements, were then recorded on the (building units or group titles) plan. To work out what the current by-laws for a plan were, you needed to search the Freehold Land Register, and then obtain a copy of each amendment and the plan, and then work out when the plan was registered. The registration date would determine which version of the schedule by-laws applied. After all of that, you could assemble the by-laws, Frankenstein’s monster3 style, and only then work out if anyone was being naughty…
The BCCM Act changed all that overnight – instead of amending by-laws, you had to lodge a whole new set with the Registrar of Titles, every time. While this introduced some new but very minor problems of its own, the new system had (and continues to have) a singular advantage – any lot owner, committee member, body corporate manager, third party buyer etc. could do one search of the Freehold Land Register and get their hands on ‘the by-laws’.
This one change has saved millions in legal fees over the years, and it has also helped achieve the objects of the BCCM Act; including self-management and accessibility of information.
The BCCM Act allowed a 3-year transition period, for bodies corporate to record their consolidated by-laws, within a New Community Management Statement. For those bodies corporate that did not do so, the Registrar of Titles would record a ‘standard statement’. Basically, a document in the form of a Community Management Statement, with all of the ‘easy’ information filled in, including the scheme name, the land contained in the scheme, the lot entitlements and such.
Standard statements, however, have one major failing. Within every one of them, the by-laws are stated to be ‘Taken to be those in effect as at 13 July 2000’ [section 285(5)(a) Body Corporate and Community Management Act 1997]’
Well, what does that mean? It means that anyone, and everyone, who wants to find out what the by-laws are, must go through the same exercise to determine the by-laws, as was necessary under the old BUGTA regime.
Ah, you say, it’s been 22 years since those standard statements have been recorded, surely there are only a few left? Don’t bodies corporate update their by-laws every now and then? Surely all of the standard statements would have all been replaced by now?
Alas, no. There are thousands of standard statements still recorded for thousands of bodies corporate.
Why you ask? Well, there is a reason that ‘sloth’ is considered one of the seven deadly sins…
Whenever I am engaged by a body corporate that has one of these ‘failure to launch’, 22-year old’s living in their scheme, I put on my faux po-face, and explain that I will have to charge extra to do the work, because I first have to find out what the damn by-laws are. A few hundreds of dollars later, usually at the end of the job, I’ll then suggest that the standard statement can be quickly and easily replaced with a New CMS, that consolidates the existing contents of the standard statement, without making any changes. I also explain, that by good fortune the approval to record that New CMS takes only a committee resolution, and the costs of assembly, approval, recording, and notification are only a few hundred dollars.
Almost without exception, my offer is not taken up. Why? ‘If it’s not broke, don’t fix it’ is the usual refrain.
At this stage my composure breaks down, and I find it almost impossible not to laugh out loud, because the body corporate in question has just paid, willingly, the extra cost for me to work out what the by-laws actually were, before I could do my job.
Having developed a callous on my forehead, caused by repeated contact with masonry at this juncture from trying to explain that very point, I then smile, nod, and give up. After all, what lawyer is ungrateful to a client who pays them to do more work?
The message then, on this happy anniversary, is for those lot owners and committee members out there who are happily supporting their 22-year-old, until now blithely ignorant of the cost and apparently steadfast in their adoration for it, and who’s grey matter has not yet ossified into the aforesaid masonry. To them I say, why not upset the standard?
Footnoted:
- Just one of the many excellent things to come out of South Australia, along with, for example, Barossa reds.
- Yes, I hear you, there are exceptions!
- The monster’s creator was Victor Frankenstein, the monster was nameless…
Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
This post appears in Strata News #586.
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Read next:
- QLD: Q&A Dispute Resolution Proceedings and By-Law Breaches
- QLD: Q&A Bylaws, General Rules & The Act
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