Nuisance, harassment, bullying and abuse are common labels in body corporate disputes, but each situation needs careful consideration. This article explains what behaviour the body corporate can address, what to do before making a complaint and when you may need help outside the body corporate process.
How do you deal with nuisance in a body corporate?
Start by identifying what is happening and whether it may involve:
- unreasonable noise or repeated parties
- parking or blocked access to common property
- unruly pets
- smoke drift or odours
- renovations causing excessive noise, vibration or dust
- antisocial behaviour
- glare or bright reflections
- changes to a balcony, courtyard or other area that affect neighbours.
These are examples only. A complaint should focus on the specific conduct, how often it occurs and how it affects the use or enjoyment of a lot or common property.
If it is safe to do so, speak directly with the person responsible. They may not realise their behaviour is affecting another resident. Keep the conversation calm and avoid threatening language.
If the issue continues, write to the person and explain:
- what happened
- when it happened
- how often it has occurred
- how it has affected you
- what practical change you are asking them to make.
Keep copies of emails, letters, photographs, recordings or other relevant material. You should also follow your scheme’s process for reporting concerns. Your body corporate manager may be able to explain the administrative steps, but the committee or body corporate will need to decide whether to enforce a by-law or respond to a dispute.
For a general guide to the process, see our article on resolving disputes in a body corporate community.
What counts as nuisance under Queensland body corporate law?
The Body Corporate and Community Management Act 1997, commonly called the BCCM Act, applies to most Queensland community titles schemes.
An occupier must not use, or allow another person to use, a lot or common property in a way that:
- causes a nuisance or hazard
- unreasonably interferes with another lot’s use or enjoyment
- unreasonably interferes with the lawful use or enjoyment of common property.
This applies to owners, tenants and other occupiers. It can also apply where an occupier allows a visitor to use the lot or common property in one of these ways.
Whether conduct is a nuisance depends on the circumstances. Someone finding behaviour annoying is not enough on its own. The question is whether the conduct causes a nuisance or hazard, or unreasonably interferes with another person’s use or enjoyment.
For example, occasional everyday noise may not amount to a nuisance. Repeated excessive noise late at night may be different, particularly if it substantially affects another resident’s ability to use their lot.
The same approach applies to other complaints. Smoke drift, a pet, parking, renovations or a balcony change may be permitted in some circumstances, but the resulting interference may still be unreasonable.
Queensland Government guidance gives examples of possible nuisances or hazards, including unreasonable noise, blocked common property, odours, glare, antisocial behaviour and renovations that cause excessive noise, vibration or dust.
Before making a complaint, check the registered by-laws and any relevant approval. The by-laws may regulate matters such as pets, noise, parking, smoking, renovations or use of common property, although a by-law must be valid and reasonable. Our guide to by-laws explained can help you understand their role.
What should you do before making a nuisance complaint?
A fair complaint gives the person and the body corporate enough information to understand the issue and respond to it.
Consider taking these steps:
- Check the relevant rule. Read the scheme’s by-laws and consider whether the conduct is actually restricted. Do not assume that behaviour is a breach simply because it is inconvenient or unpopular.
- Raise the issue safely. If appropriate, speak with the person responsible. If you feel unsafe, avoid direct contact and use a written or formal process instead.
- Write down the details. Record dates, times, frequency, witnesses and the effect on your use of your lot or common property.
- Make a clear request. Explain what you want to stop or change. A specific request is more useful than a general accusation.
- Contact the committee or body corporate. Provide the relevant documents and ask for the matter to be considered under the scheme’s process.
For nuisance or hazard disputes, Queensland guidance says you must try to resolve the issue with the other person before taking other dispute resolution steps. Communication is preferably in writing because it may later be needed as evidence of self-resolution. You may also need to document repeated or ongoing behaviour.
Personal safety comes first. If approaching the other person could put you at risk, use another process. Speaking with a neighbour is not a mandatory step for every possible dispute pathway. Urgent by-law issues and serious safety concerns may involve different steps.
If the matter concerns the committee or body corporate, put your request in writing and state the outcome you are seeking. You may need to submit a motion, depending on who can decide the issue and what action is requested.
Landlords should ensure tenants and guests understand the scheme’s by-laws. Owners and occupiers should have access to the applicable by-laws and understand the restrictions that may affect their use of the lot and common property.
How does the body corporate enforce a by-law breach?
The body corporate is responsible for enforcing its registered by-laws. Owners and occupiers can also ask for enforcement.
The committee, or the body corporate at a general meeting, may decide whether to issue a contravention notice. The usual first formal step is for the body corporate to give a notice to the person it believes is breaching the by-law.
There are two main types of contravention notice:
- A continuing contravention notice is used where the body corporate believes a breach is continuing and likely to continue. It requires the person to remedy the breach within a reasonable period.
- A future contravention notice is used where the person has breached a by-law and the body corporate believes the breach is likely to be repeated. It requires the person not to repeat the breach.
The notice must identify the by-law, explain the alleged conduct and state what the person must do. It must also explain the possible next steps if the person does not comply.
If the alleged offender is a tenant or other occupier who is not the lot owner, the notice should be given to that person. A copy must also be given to the lot owner.
An owner or occupier who believes another owner or occupier has breached a by-law, and that the breach is likely to continue or be repeated, can use the approved BCCM Form 1. The form asks the body corporate to give a contravention notice to the person believed to be breaching the by-law. It is given to the body corporate as the first step.
Form 1 is a request to the body corporate. It is not a contravention notice issued directly by the resident to the alleged offender.
After receiving the form, the committee must advise the complainant within 14 days if a contravention notice has been issued. If the body corporate does not respond or decides not to issue a notice, the complainant may be able to apply for conciliation.
The usual dispute pathway is self-resolution, followed by conciliation and, if necessary, adjudication. An owner or occupier generally cannot start Magistrates Court proceedings to enforce a by-law without first obtaining an adjudicator’s order.
There are exceptions for urgent by-law issues. Special circumstances may apply where the alleged breach is likely to cause injury, serious property damage, a risk to health or safety, serious nuisance or another emergency.
Can the Commissioner’s Office deal with harassment or bullying?
The Commissioner’s Office deals with body corporate disputes under the legislation. A complaint described as bullying or harassment may still be relevant if the conduct also involves a nuisance, hazard or breach of a registered by-law.
Queensland Government guidance states that body corporate legislation does not cover or define bullying and harassment within any type of body corporate. It also states that the Commissioner’s Office cannot deal with a dispute about bullying or harassment where there is no breach of the BCCM Act or another body corporate Act. A body corporate may choose to regulate certain behaviour through its by-laws.
The label alone is unlikely to determine the available process. Focus on the conduct and identify whether it involves:
- unreasonable interference with your lot or common property
- a nuisance or hazard
- a breach of a registered by-law
- a decision or action by the body corporate that may breach the legislation.
For example, repeated verbal abuse may be part of a wider dispute, but the body corporate process will need to address a matter within its powers. If the conduct involves excessive noise, obstruction, smoke drift, property damage or another by-law issue, describe those specific facts rather than relying only on the word “bullying”.
If self-resolution has failed and the dispute falls within the BCCM Act, conciliation is generally the first formal dispute resolution step. An independent conciliator helps the parties try to reach their own agreement. The conciliator does not make a ruling or provide legal advice.
If conciliation does not resolve the dispute, an eligible applicant may be able to apply for adjudication. Adjudication is a more formal process in which an adjudicator considers written material and makes a decision that can be enforced.
The Commissioner’s Office is not a police, personal safety or legal service. A body corporate manager can help with administrative steps, but cannot decide whether conduct is legally a nuisance or direct the committee’s decision.
When should you seek help outside the body corporate process?
The body corporate process is designed for scheme-related issues. It should not be treated as a substitute for dealing with threats, physical abuse or violence.
If you experience physical abuse or violence, report it to police and prioritise your immediate safety. Avoid confronting the person if doing so could increase the risk. Consider asking a trusted person to support you and keep records in a safe place.
You may also need advice from an appropriately qualified professional where the situation involves personal safety, family or domestic violence, stalking, threats, damage to property or another matter outside the body corporate’s powers. The Commissioner’s Office explains that it cannot provide legal advice or rulings.
When a dispute does remain within the body corporate process, prepare your material carefully. Conciliation and adjudication applications are shared with the other parties, and adjudication material may become public if an order is made. Do not include information you need to keep private.
Nuisance complaints are best managed by focusing on specific conduct, evidence and a practical outcome. Bullying, harassment and personal safety concerns may require a different response.
If you are unsure how to proceed within your scheme, contact the StrataCare team at reception@stratacare.com.au.
