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Is your hard flooring by-law valid?

By Frank Higginson29 Apr 2011

The replacement of carpet with hard flooring (timber, tiles or the like) is a major source of conflict in community title schemes where the lots are in a tower.

Many bodies corporate have existing by-laws in relation to changing floor coverings. These by-laws can set out the basis on which floor coverings can be replaced, the required underlay, maximum sound measurements and the obligations around the seeking of consent from the committee in relation to the actual installation of the flooring itself.

A by-law like this was recently considered by the commissioner. The by-law in question provided for:

  • The requirement for a written proposal to the committee detailing the proposed flooring standards.
  • Inspection by body corporate consultants on conclusion.
  • Imposition of obligations around conforming to Australian Standards.

Frequent readers might recall our previous newsletter on the distinction between prohibitory and regulatory by-laws. Click here to read this newsletter.

In this instance, the by-law itself was held not to be a prohibitory one in nature. It did not give the committee an unqualified or unlimited discretion to refuse consent, and the process of the assessment was not uncertain or arbitrary. In addition, it was held that it was not unreasonable to regulate the use of flooring within individual lots to contain the possibility of nuisance created by noise travelling between lots.

This shows that a well drafted by-law that gives reasonable guidance around what owners need to do in an application can be reasonable and enforceable.

Interestingly, the by-law also sought to provide that any consultant’s fees incurred by the body corporate in assessing any application were to be paid by the applicant. It was held that this particular component of the by-law was not reasonable. Firstly, the BCCM Act provides that a by-law cannot impose a monetary liability on a lot owner. In addition, it was unreasonable for the costs to be uncapped and unlimited in scope. This component of the by-law was unreasonable and oppressive and was therefore struck out.

A way around this might be to impose a condition in the by-law requiring evidence from an expert of certain criteria being met as part of any application. This could relate to sound measuring and the like.

Given the increased certainty around what by-laws should provide, it would be worthwhile for body corporate managers and committee members to revisit any flooring by-laws that exist to determine whether they should be amended. If you are considering putting one in, you should ensure you get it right from the start.