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Reviewing your by-laws

We can advise on a complete review of the CMS or a discrete review of a single or number of by-laws.  We can also assist with providing by-laws that address a new issue or issues facing a building.

When it comes to any by-laws, we always start by referring bodies corporate to three sections of the legislation which we think are very important. 

The first is section 167 which provides:

‘The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that:

  • causes a nuisance or hazard; or
  • interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
  • interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.’

This is what the Act requires with respect to conduct. For conduct to be able to be restrained under the by-laws (or the Act for that matter), it must interfere unreasonably with another owner. That means that reasonable interference is allowable.

The second provision is section 169 which provides:

The by-laws for a community titles scheme may only provide for the following:

  • the administration, management and control of common property and body corporate assets;
  • regulation of, including conditions applying to, the use and enjoyment of:
    • lots included in the scheme; and
    • common property, including utility infrastructure; and
    • body corporate assets, including easement areas relevant to common property; and
    • services and amenities supplied by the body corporate;

To the extent any by-laws go beyond those parameters, they are unlawful. 

The final provision is section 180 which limits what by-laws can include. This prevents by-laws from:

  • being inconsistent with the legislation (such as restricting a reasonable interference);
  • restricting the style of residential use (i.e., short term as against long term occupation);
  • restricting a transmission, transfer, mortgage or other dealing with a lot;
  • discriminating between different types of occupiers (i.e. only owners can use the pool);
  • imposing a monetary liability (such as a fine or the like); or
  • being oppressive or unreasonable in the circumstances.

All by-laws are subject to those limitations.

When we advise on by-laws, those provisions are key considerations as well as whatever the latest decisions have been from the Commissioner’s Office that relate to enforcement of by-laws.  What we can guarantee is that when you are advised by us that you will be given the most up to date advice possible.

From a costs perspective, we can tailor a fixed fee proposal for any brief.  Where we do a global review of by-laws, we have a very structured advice program where we actively engage with you around what the needs of the building are and frame the new by-laws in light of that.

Click here to see five common invalid or unnecessary by-laws.

 

By-law review service

Click here to be taken to a page where you can submit your CMS for us to give you a free proposal to review your by-laws.