Is Queensland falling behind New South Wales?
29 Aug 2016
PDF version available here.
What a provocative headline. Especially for a Queensland based organisation.
Life is about context. If we are talking rugby league – the answer is definitely not. Of the last 11 Origin series, Queensland has won 10 of them. The only reason it didn’t happen in 2014 was because Jarryd Hayne hadn’t yet decided on his (latest) dream.
If we are talking strata laws the answer could arguably (and unfortunately) be yes. When the Body Corporate and Community Management Act 1997 was introduced in 1994 (to become law in 1997), it was absolutely the leading strata legislation in the country.
We have had small legislative updates in 2003 and 2008. Since then we have had four discussion papers released about further changes to our legislation with no government response yet to the hundreds of industry submissions.
New South Wales strata laws have been morphing closer and closer to our legislation with a new regime to commence on 30 November this year. Unsurprisingly, they seem to be picking off (i.e. copying) some of the good parts of the BCCM Act, but they have gone a lot further in some areas.
We think they have definitely pipped us in relation to by-laws.
Our legislation sets out what by-laws may only provide for, and also sets out what by-laws cannot address. Of course, there is a lot of grey in the middle of that, and the Commissioner’s Office is littered with by-law enforcement applications gone wrong because the body corporate was on the wrong side of the grey.
The new legislation in New South Wales is forcing all existing owners corporations (what we call bodies corporate) to review their by-laws. If the New South Wales government thinks it is important enough to mandate a compulsory review of by-laws, it follows that it should be good enough for Queensland committees to do the same thing.
How long since you looked at your by-laws? Do you have a standard statement? If so, it means your by-laws have not been locked at for nearly 20 years. If not, click here to download the five most common unlawful by-laws we see and compare how many of them are in your CMS. Without a doubt, you will have at least a few of them.
We review by-laws for bodies corporate regularly. In every set of by-laws we see, there is always a pile of them that are clearly unlawful and unenforceable. It sounds good in theory that you know they may not be lawful. But you will not always be there. Committee members, strata managers, and resident managers come and go. With them goes that knowledge.
Lots of people think that just because a by-law is registered it is enforceable. It isn’t. What registration means is that the CMS document was in the right form. The Titles Office does not look at the content of the by-laws themselves.
What that leaves us with is helping lots of bodies corporate and lot owners navigate half litigious matters relating to by-laws that do not cut the mustard.
Making sure your by-laws are lawful should be best practice for any body corporate committee. There is no logic in keeping unlawful by-laws. To the extent that the committee ever tried to rely on one it would lose any enforcement proceeding in the Commissioner’s Office.
The ‘old’ days of knowledge equaling power have been overrun by the interweb. You cannot try to run people over with unlawful by-laws these days because the first thing people will do is google the problem, and Google almost always reveals the answer.
Try it. Google ‘Can a body corporate tow a car’ and see what comes up.
Lawyers are creatures of precedent. We do things the same way lots of the time because things have always been done that way. That does not necessarily make that way right.
We have a new way of conducting by-law reviews to ensure best practice in your body corporate. We start from the ground up with what your scheme needs and then engage with you to make sure you get what you need. We don’t start with your current by-laws as the base for that review, although we do reference to them to make sure we cross check what major changes there might be.
What is even better is that we give you an obligation free cost proposal to do it once we have your CMS. You can upload your CMS here.
What’s to lose?