Caretakers are often onsite, so they may be assumed to have wider responsibilities than they actually do. This can cause confusion when a possible by-law breach occurs.
This article explains what a caretaker can do, who makes enforcement decisions and how contravention notices work.
Can a caretaker enforce body corporate by-laws?
A caretaker does not have unlimited authority to enforce the body corporate’s by-laws.
By-laws regulate the use and enjoyment of lots and common property, along with the administration, management and control of common property and body corporate assets.
The Body Corporate and Community Management Act 1997 makes the body corporate responsible for enforcing its own by-laws. The committee or the body corporate at a general meeting can generally decide whether to give a contravention notice.
A caretaking service contractor is automatically a non-voting committee member and does not have the right to vote on committee decisions.
A caretaker therefore cannot independently decide to issue a contravention notice simply because their engagement includes by-law-related tasks. Their role may include reporting, reminders and administrative support, but those tasks are different from making the enforcement decision.
Clear roles help the committee respond efficiently and avoid spending time debating who should act. You can read more about caretakers and maintenance responsibilities.
What can a caretaker do when they notice a possible by-law breach?
The caretaker’s duties depend on the terms of their written engagement. Caretaking service contractors perform specific duties to help the body corporate meet its obligations.
Depending on those terms, a caretaker may:
- report a possible breach to the committee
- provide relevant details after witnessing an incident or receiving a complaint
- remind residents about their responsibilities under the by-laws
- send correspondence or a contravention notice after the body corporate has decided to issue it.
A caretaker’s report should identify the relevant by-law, the person involved and what allegedly occurred. Dates, photographs and written complaints may help the committee assess the circumstances.
A friendly reminder may resolve the issue if a resident was unaware of a by-law. If the concern continues, the committee can consider the formal by-law enforcement process.
Owners and occupiers can formally ask the body corporate to act by giving the committee the approved notice for an alleged by-law breach. This is the required first step if they later wish to pursue the usual conciliation pathway themselves.
A caretaker who is not acting as an owner or occupier can still report the matter using the communication method agreed with the committee.
Who decides whether to issue a contravention notice?
For most schemes, the committee manages the body corporate’s day-to-day administration and makes decisions on its behalf, subject to restrictions on its authority.
The committee or the body corporate at a general meeting can decide whether to give a contravention notice.
The applicable legislation and regulation module should always be checked. Specified two-lot schemes do not have a committee and follow a different contravention notice process.
Once the decision has been made, the caretaker may be asked to send the notice if this administrative task falls within their engagement. A body corporate manager may also send by-law contravention notices when authorised to perform the relevant duties.
Sending the notice does not mean the caretaker or manager made the decision to issue it.
What is the difference between continuing and future contravention notices?
A contravention notice tells an owner or occupier that the body corporate believes a by-law has been breached. It must identify the relevant by-law and explain how it has allegedly been breached.
There are 2 main types of notice.
Continuing contravention notice
This notice applies where the body corporate believes a person is breaching a by-law and the breach is likely to continue. It requires the person to remedy the breach within a stated period.
For example, ongoing storage of personal belongings on common property may be treated as a continuing breach if it contravenes the scheme’s by-laws.
Future contravention notice
This notice applies where the body corporate believes a by-law was breached and the breach is likely to be repeated. It directs the person not to repeat the conduct.
Repeated disorderly parties may be an example where the conduct breaches a noise by-law and there is evidence it is likely to happen again.
If a person does not comply with a contravention notice, the body corporate may apply for conciliation or start proceedings in the Magistrates Court.
Does the committee have to issue a notice after a breach is reported?
A report or approved notice does not automatically require the committee to issue a contravention notice.
The committee should consider the evidence, the wording of the relevant by-law and whether the alleged conduct is continuing or likely to be repeated. It must exercise its own judgement and act reasonably.
After receiving an approved notice from an owner or occupier, the committee has 14 days to advise the complainant if a contravention notice has been issued. If the body corporate does not respond or chooses not to issue one, the complainant may be able to apply for conciliation after first trying to resolve the issue with the other person.
Informal communication may be suitable in some circumstances. A formal notice may be appropriate where the facts and by-law support that step, but issuing one does not guarantee a successful enforcement outcome.
What should owners and occupiers do when a by-law may have been breached?
Start by checking the scheme’s current by-laws and gathering clear information about what occurred. Do not assume the caretaker can decide the outcome.
Raise the issue with the committee and provide:
- the by-law you believe applies
- dates, times and locations
- a description of the conduct
- any relevant photographs, messages or witness details
- information showing whether the issue is continuing or likely to happen again.
If you want to begin the formal owner or occupier process, use the current approved form for notifying the body corporate of the alleged breach. BCCM provides forms for individuals and bodies corporate to use in by-law enforcement processes.
Clear reporting, reasonable decision-making and a proper understanding of the caretaker’s role give the body corporate a sound basis for responding to a possible breach.
If your committee needs help understanding the administrative steps, contact StrataCare at reception@stratacare.com.au.
