The rules governing a body corporate are known as by-laws, and they guide owners and residents of a body corporate scheme to know what they can and can’t do on body corporate property. They are extremely important in any strata scheme, and allow bodies corporate to effectively administer and control the body corporate assets, common property, owners and residents.
Without some kind of rule system, many bodies corporate would quickly descend into anarchy, confusion, disputes and controversy. Operating under by-laws in a body corporate situation allows a diverse community of people to work together harmoniously and effectively. Conflict and disputes are more likely to be avoided if everyone is familiar with the by-laws and abides by them. By-laws allow a body corporate to maintain consistency of behaviour and peaceful community living for all parties involved in a scheme.
You can think of each body corporate scheme as an autonomous country, and its by-laws as the mini constitution. And like any country, the rules differ between body corporate schemes. Each body corporate scheme can create different by-laws that apply to their individual situation, and they are applicable to the building they relate to only.
While there are a set of standard by-laws set out in Schedule 4 of the Body Corporate and Community Management Act 1997 (QLD) which bodies corporate can choose to follow, a body corporate can also choose to make its own by-laws. However, this must be done without contravening anything in the Body Corporate and Community Management Act. Whichever way a body corporate chooses to go, valid by-laws are enforceable, meaning lot owners and residents are obligated to follow them once they enter a scheme.
How are by-laws created?
New by-laws are created (or old ones changed) by passing a motion to record a new community management statement that includes changes to or new by-laws. This must be agreed to by a special resolution at a general meeting of the body corporate. Following this, the body corporate has three months to register the new community management statement with the Titles Registry Office. The new by-law is considered to come into effect on the day the register records the new community management statement – unless of course, a later date has been set within the by-law.
What do by-laws usually cover?
Although the specifics of by-laws can vary between bodies corporate, all will usually cover topics such as:
- Renovation of your lot
- The appearance and cleanliness of your lot
- The activities of residents and visitors to your lot
- Parking of vehicles
- Ownership of pets and responsibilities of owners
- Use of common property
- Body corporate assets
- Flooring materials
- Damage to common property
- Rubbish on common property
- Drying of washing
- The use of lots
- Facilities and services provided by the body corporate
- Obstruction of the lawful use of common property
- Storage of flammable materials
However these by-laws are created, their aim is to help members of a strata scheme be considerate of and cooperative with their neighbours, and thus to live harmoniously within the body corporate community.
Can by-laws be invalid?
By-laws can indeed be considered unlawful or invalid in certain circumstances, such as when the by-law:
- Discriminates between types of occupiers
- Is inconsistent with the Act or any other legislation
- Is oppressive or unreasonable when the interests of all parties are taken into consideration
- Imposes a monetary liability on an owner or resident
- Restricts the type of residential use of a residential lot
- Includes a provision that has no force or effect under the Building Act 1975, chapter 8A, part 2
In any of these cases, the by-law would not be enforceable by law.
How are by-laws enforced?
If a body corporate believes that a lot owner or resident is breaching one of its by-laws, there are a number of steps they will take to address the problem:
1. Informal resolution of the issue. The body corporate will usually try a non-confrontational conversation first, to bring the problem to the attention of the lot owner or resident and help them commit to changing their behaviour.
2. If the by-law breach continues to occur, the body corporate committee will then issue a by-law contravention notice to the person breaching the by-law. Until a by-law contravention notice has been issued, no action can be taken to enforce the by-law.
3. If the relevant party still does not cease the offending practice or behaviour, the body corporate has two options. They can apply for conciliation to enforce the by-
law, where an independent person will work with the offending party and the body corporate to resolve the dispute. The body corporate must show that they have tried to resolve the issue before they can apply for conciliation, however.
4. The second option is to commence proceedings in the Magistrates Court for failing to comply with the contravention notice.
If you have any questions about by-laws in your body corporate scheme, speak to Capitol today. Contact us here: https://www.capitolbca.com.au/contact-us/