We often have owners come to us and ask why we can’t tow a vehicle or remove an animal by force or evict a tenant for a loud party. When advised of the correct procedure, owners generally reply along the lines of ‘Are Body Corporate By-Laws even Enforceable?’.
The answer to this commonly asked query is, yes, and enforcing by-laws is not an optional activity. By-laws must be enforced, and the responsibility for their enforcement lies with the body corporate committee. However, the body corporate must act reasonably in enforcing the by-laws. Owners and occupiers can also take action to request the committee enforce a bylaw and the steps that must be taken depend on who is enforcing the by-laws. There are a few legislative processes that all committees must follow when it comes to bylaw enforcement. Furthermore, the by-laws are enforceable as long as the bylaw itself is lawful and does not contradict the Body Corporate and Community Management Act 1997 or the Regulations Modules.
This is where the confusion starts, as one of the common misconceptions is that if a by-law is registered, it must be lawful and enforceable, however, this is not always accurate.
By-laws are registered at the titles office after submission, however, it is not the titles office’s responsibility to assess the lawfulness of each by-law submission. The titles office simply registers the CMS (Community Management Statement) and ensures the correct signatures and payment methods have been included.
A by-law must not be unreasonable or oppressive and have regard for the interests of all owners and occupiers of lots in the scheme. Any by-law that completely prohibits an action with no option to request the consent of the Body Corporate is deemed unreasonable. An example of this could include prohibiting any owner or occupant from keeping a pet within their lot or prohibiting the alteration of the external appearance of a lot without the option to request consent from the Body Corporate.
For more information on what constitutes an invalid by-law please see: https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/making-by-laws