On 24 August 2023 the Honourable Yvette D’Ath MP introduced the Body Corporate and Community Management and Other Legislation Amendment Bill 2023 (Bill) into the Queensland Parliament.
The Bill has been referred to the Legal Affairs and Safety Committee (LASC) to conduct an inquiry before the Bill is further considered to become law.
In this article, Special Counsel Hayley Harvey from HopgoodGanim’s Commercial Property team outlines the Bill and the proposed amendments.
At this stage, the Bill proposes to amend the Body Corporate and Community Management Act 1997 (Act) to:
1. enable a body corporate to tow a vehicle on common property, so long as they act in accordance with other legislation or another law, without the need to comply with the by-law contravention requirements;
2. cure a current concern for many bodies corporate, by:
(a) confirming that smoking constitutes a nuisance if an occupier smokes regularly and exposes another occupier to smoke drift; and
(b) allowing bodies corporate, through their by-laws, to prohibit smoking (which includes using a personal vaporiser or hookah) on the common property or an outdoor part of the lot;
3. confirm that by-laws cannot prohibit an animal or impose any restriction on the size, type or number of animals, includes timeframes for the consideration of a pet application and also lists the circumstances in which an application might be refused;
4. allow a body corporate to change the financial year for the body corporate by passing an ordinary resolution, but only once in a five-year period;
5. allow a body corporate to make an adjudication application in the Office of the Commissioner for Body Corporate and Community Management for an order to allow the body corporate to not comply with the requirement under the regulations to insure the scheme for full replacement value but instead obtain alternative insurance when the body corporate cannot comply with the required level of insurance for particular buildings.
Currently, a scheme can only be terminated by a resolution without dissent or an order of the District Court of Queensland if the Court decides it is just and equitable to terminate the scheme. The proposed amendments in the Bill include:
1. better guidance for the Court in deciding to approve the termination of a scheme;
2. new mechanisms to terminate a scheme for economic reasons with the consent of 75% of lot owners; and
3. partial jurisdiction to consider termination issues in the Office of the Commissioner for Body Corporate and Community Management.
In respect of layered schemes, the Bill proposes to:
1. allow a principal body corporate to enforce a by-law against the occupier or owner of a lot in a subsidiary scheme; and
2. allow record requests to be made by a subsidiary lot owner against a principal body corporate.
The proposed amendments will, it is expected, rectify some problems for bodies corporate in managing schemes and will also clarify the current operation of the legislation.
Importantly, the proposed amendments will bring the Act in line with other jurisdictions to allow the termination of a scheme with the consent of 75% of lot owners but for economic reasons only. Those economic reasons are:
1. if all the lots are used for a commercial purpose, it is not economically viable for the scheme to continue; or
2. it is not, or will not be within 5 years, economically viable for the body corporate to carry out repairs and maintenance to property or assets it must maintain in good and structurally sound condition.
For more information or assistance, please reach out to Partners Don Battams and Anthony Pitt or Special Counsel Hayley Harvey in our Commercial Property team.
Author: HopgoodGanim Lawyers