A clear enforcement process helps Queensland body corporates address by-law breaches fairly and avoid unnecessary disputes. This guide explains the notices, timeframes and dispute resolution options available to body corporates, owners and occupiers.
How do you enforce body corporate by-laws in Queensland?
A body corporate is responsible for enforcing its own by-laws. Owners and occupiers can also take action, although the required steps depend on who is seeking enforcement.
Before taking action, check the by-law recorded in the scheme’s community management statement and confirm that it applies to the conduct in question. You can read more about how these rules operate in our guides to by-laws explained and body corporate by-laws.
Not every recorded by-law will necessarily be valid. The Body Corporate and Community Management Act 1997, known as the BCCM Act, limits what by-laws can regulate. For example, a by-law cannot be inconsistent with legislation, discriminate between types of occupiers or be oppressive or unreasonable.
Recorded by-laws continue to apply unless and until an adjudicator decides that a by-law is invalid.
The process below generally applies to community titles schemes governed by the BCCM Act. Specified two-lot schemes have a separate process in which an owner may give a contravention notice directly. Check which regulation module applies before starting enforcement action.
What should a body corporate do after a by-law breach?
Start by gathering clear information about the alleged breach. This may include written complaints, dates, photographs, correspondence or other records showing what happened and whether the conduct is continuing or likely to happen again.
The body corporate can speak informally with the owner or occupier and explain what needs to change. A practical conversation or letter may resolve the issue without formal action.
If informal contact does not work, the first formal step is usually a by-law contravention notice. The committee or the body corporate at a general meeting can decide to issue the notice. The body corporate generally cannot take formal enforcement action until it has sent the appropriate notice.
The decision and supporting information should be properly recorded. The notice should identify the relevant by-law and describe the conduct clearly enough for the recipient to understand the concern.
Formal action should support compliance rather than punish the recipient. A clear notice gives the recipient an opportunity to remedy the breach or avoid repeating it before the matter progresses further.
What is the difference between continuing and future contravention notices?
The correct notice depends on whether the breach is continuing or likely to be repeated.
Continuing contravention notice
A continuing contravention notice, BCCM Form 10, is used when the body corporate believes a person is breaching a by-law and the circumstances suggest the breach will continue. The notice requires the person to fix the problem within a reasonable period.
The notice must:
- state that the body corporate believes the person is breaching a by-law
- identify the relevant by-law
- give enough detail to identify the breach
- set a reasonable period for remedying it
- explain that non-compliance may lead to Magistrates Court proceedings or a dispute resolution application.
For example, this notice may be suitable where an unauthorised alteration remains in place and must be removed or corrected.
Future contravention notice
A future contravention notice, BCCM Form 11, is used when a breach has occurred and the body corporate believes it is likely to happen again. The notice requires the person not to repeat the conduct.
It must identify the by-law and breach, direct the recipient not to repeat the conduct and explain the possible enforcement steps following non-compliance. A future contravention notice generally operates for 3 months after it is given, unless the notice states a shorter period.
Repeated noise breaches are a common example where a future notice may be appropriate.
Current by-law contravention forms are provided through the Queensland Government’s BCCM forms service.
Who receives a by-law contravention notice?
The body corporate must send the notice to the person it believes breached the by-law. The notice should not simply be addressed to the property manager or another person who was not responsible for the conduct.
If the alleged breach was committed by an occupier who is not the owner, the notice must name that occupier. The body corporate must also give the owner a copy when, or as soon as practicable after, the notice is given to the occupier.
Different copying requirements can apply in a layered scheme, including notifying the body corporate for the scheme where the relevant lot is located.
What can an owner or occupier do about a by-law breach?
An owner or occupier may act if they reasonably believe another owner or occupier has breached a by-law and the breach is likely to continue or be repeated. The first formal step is to give the body corporate BCCM Form 1, asking it to issue a contravention notice.
Provide useful details with the request, including:
- the by-law believed to have been breached
- dates and a factual description of the conduct
- whether the breach is continuing or likely to recur
- relevant photographs, correspondence or other evidence
- the outcome needed to resolve the issue.
The committee then has 14 days to advise the complainant that a contravention notice has been issued. If it does not respond or decides not to issue the notice, the complainant may apply for conciliation against the person allegedly breaching the by-law. They must first try to resolve the issue directly with that person.
Self-resolution should be documented, preferably in writing, because evidence of those efforts may be required for a dispute resolution application.
If the body corporate confirms that it issued a notice but its enforcement action is inadequate, the complainant may apply for conciliation against the body corporate. An owner or occupier cannot directly start Magistrates Court proceedings to enforce another person’s compliance unless they have already obtained an adjudicator’s order in their favour.
Our guide to resolving body corporate disputes provides further practical information about managing disagreements.
When can you apply for urgent dispute resolution?
In special circumstances, a dispute resolution application may proceed without the body corporate first issuing a contravention notice or an owner or occupier first giving BCCM Form 1.
This pathway may be available where the alleged breach:
- is likely to injure a person or cause serious property damage
- creates a health or safety risk
- is causing a serious nuisance
- gives rise to another emergency.
The dispute must need urgent resolution, and the application must seek an interim adjudicator’s order. The preliminary process may also be bypassed where the by-law dispute is incidental to an application to repair damage or reimburse repair costs arising from the breach.
Urgency should not be assumed simply because a disagreement is frustrating or longstanding. The application needs to explain the special circumstances and why waiting through the usual process is not appropriate.
What happens if the contravention notice is ignored?
If the recipient does not comply with a contravention notice, the body corporate may start Magistrates Court proceedings for failing to comply or apply for conciliation to enforce the by-law.
Conciliation involves an independent conciliator helping the parties try to reach an agreement. Before applying, the applicant must generally show that reasonable attempts have been made to resolve the matter directly.
If conciliation does not resolve the dispute, adjudication may be available. An adjudicator considers written material and can make an order that the parties must follow.
Effective by-law enforcement depends on using the correct notice, addressing it to the right person and following each required step.
If your committee needs help coordinating the process or checking the scheme records, contact StrataCare at reception@stratacare.com.au.
