Body corporate by-laws regulate how lots, common property, services and facilities are used. A by-law may appear in your community management statement but still be invalid or unenforceable.
This guide explains what to check before your body corporate relies on a by-law or starts enforcement action.
Are my body corporate by-laws valid in Queensland?
For a community titles scheme, the Body Corporate and Community Management Act 1997 (the BCCM Act) sets the framework for by-laws. The body corporate is responsible for enforcing its registered by-laws.
Start by identifying which by-laws apply to your scheme. They are usually found in the community management statement (CMS) recorded with Titles Queensland. If a CMS for a scheme created after July 1997 does not list any by-laws, the standard by-laws in schedule 4 of the BCCM Act may apply. Older schemes can have more complicated arrangements, including by-laws carried over from earlier legislation.
A by-law starts when the registrar records the CMS containing it, unless the by-law states a later commencement date. Recording a by-law does not automatically make it valid.
If you are unsure whether an old by-law remains in force, check the current CMS and the scheme’s historical records. Some schemes retain older by-laws to preserve the status quo, but age or long-term use does not, by itself, establish validity.
You can also read our complete guide to body corporate by-laws for more background.
What can a Queensland body corporate by-law regulate?
A by-law may regulate:
- the administration, management and control of common property and body corporate assets
- the use and enjoyment of lots
- the use and enjoyment of common property and utility infrastructure
- body corporate assets, including relevant easement areas
- services and amenities supplied by the body corporate
- other matters the BCCM Act permits to be included in by-laws.
This can include practical rules about parking, noise, renovations, use of facilities, appearance and animals. A by-law should regulate the use of the scheme within the body corporate’s lawful powers.
If a by-law conflicts with another provision of the CMS that is not itself a by-law, that other provision prevails to the extent of the inconsistency.
The wording matters. A rule that requires approval, limits an activity in a particular area or sets reasonable conditions may be different from a rule that prohibits an activity altogether. The scheme’s layout, common property, other legislation and the circumstances of the owners and occupiers may also be relevant.
What makes a body corporate by-law invalid?
The BCCM Act sets several limits. A by-law is invalid to the extent that it conflicts with the BCCM Act, its regulation module or another Act. It also cannot:
- restrict the type of residential use lawfully permitted for a lot
- prevent or restrict selling, leasing, transferring, mortgaging or otherwise dealing with a lot
- discriminate between types of occupiers
- impose a monetary liability on an owner or occupier, unless it is an exclusive use by-law
- be oppressive or unreasonable, having regard to the interests of all owners and occupiers and the use of common property
- include a provision that has no force or effect under the Building Act 1975.
For example, a rule that allows owners but not tenants to use the common property pool may discriminate between types of occupiers. A rule requiring an owner or occupier to pay a bond before moving in may impose a monetary liability.
Whether a by-law is oppressive or unreasonable depends on the scheme’s circumstances. A condition that is reasonable in one building may not be reasonable in another. Consider the wording, the purpose of the rule, the impact on affected people and how common property is used.
The government’s guidance also gives examples of rules that cannot restrict solar installations solely because of the building’s appearance, or restrict a person with a disability from having a guide, hearing or assistance dog.
An invalid by-law cannot be enforced as a valid rule. Recorded by-laws generally continue to apply unless and until an adjudicator decides that a by-law is invalid. An adjudicator may require the body corporate to record a new CMS removing or amending it.
Can a by-law ban an otherwise lawful activity?
Restrictions are not automatically invalid. A restriction may be appropriate where it regulates when, where or how an activity occurs and responds to the circumstances of the scheme.
For example, a rule about using common property, controlling noise or keeping an area clear may regulate conduct without banning an otherwise lawful use of a lot. The by-law must stay within the permitted subject matter and remain reasonable.
A by-law that requires approval should also be read carefully. Check what the approval process says, who decides the request and whether the conditions relate to a valid scheme concern. An approval requirement is not automatically invalid or automatically enforceable.
The BCCM Act also contains specific rules for smoking. A by-law may prohibit or restrict smoking or inhaling smoking products on common property, body corporate assets and certain outdoor areas, including balconies, courtyards, patios and verandahs. It cannot restrict or prohibit smoking inside the enclosed part of a lot.
Where a proposed or existing rule is difficult to interpret, obtain advice specific to your community titles scheme before treating it as invalid.
Are pet, smoking, parking and nuisance by-laws still valid?
Pets. Current animal rules limit what a by-law can do. A by-law must not prohibit keeping or bringing an animal on a lot or common property, or restrict the number, type or size of an animal. It may require written approval and allow reasonable conditions. Approval must not be unreasonably withheld.
A body corporate may refuse an animal request only on specified reasonable grounds, such as an unacceptable health or safety risk, a legal restriction, a regulated dog, or unreasonable interference that cannot be managed by conditions. A refusal based only on a “no pets” rule is unreasonable.
Check your scheme’s current animal by-law before making an application. An older prohibitive animal by-law may still appear in the CMS even though the legislation makes that type of rule invalid.
Smoking. Smoking restrictions can apply to common property and some outdoor private areas, but not the enclosed part of a lot. A nuisance or hazard caused by smoking may also be dealt with separately from a smoking by-law.
Parking. Parking is commonly covered in body corporate by-laws. Its inclusion does not remove the need to check validity.
Nuisance. Even where there is no specific by-law, an occupier must not use a lot or common property in a way that causes a nuisance or hazard, or unreasonably interferes with another lot or common property. Examples can include unreasonable noise, odours, obstructions and renovation impacts.
What should a body corporate do before enforcing a by-law?
Before taking formal action, the body corporate should:
- obtain the current CMS and confirm the exact wording of the by-law
- check when it was recorded and whether later changes apply
- consider whether it is within the permitted subject matter
- check it against the BCCM Act, the regulation module and other relevant legislation
- consider whether it is discriminatory, oppressive, unreasonable or imposing a prohibited monetary liability
- identify the person who is alleged to have breached it
- gather reliable evidence of the alleged breach
- consider whether informal communication may resolve the issue.
If formal enforcement is appropriate, the first step is usually a contravention notice. A continuing contravention notice can require a person to remedy an ongoing breach within a reasonable period. A future contravention notice can require a person not to repeat a breach where repetition is likely.
The notice must identify the by-law, explain the alleged breach and state what the person must do. If the person is an occupier who is not the owner, the notice should be given to the occupier and a copy provided to the owner as soon as practicable.
An owner or occupier who wants the body corporate to act will generally need to give it the approved notice requesting enforcement. The body corporate has 14 days to advise whether a contravention notice has been given. If the issue is not resolved, the complainant may be able to apply for dispute resolution.
You can read more about the process in our guide to enforcing by-laws. Reviewing a by-law before enforcement can help avoid a prolonged dispute about a rule that may not be valid, particularly where the wording or scheme history is unclear.
Before enforcement, confirm the by-law, check the scheme circumstances and follow the correct notice process. If your committee needs help reviewing the process, contact StrataCare at reception@stratacare.com.au.
