Hynes Legal Services
Are your By-laws Legal & Enforceable?
We bet they’re not and here is why:
The Body Corporate and Community Management Act 1997 (Qld) (BCCMA) has several restrictions on what by-laws can address. In almost every scheme we have seen, these legislative provisions are not consistent with the by-laws themselves and therefore they are not legal, nor can they be enforced.
Typically, lawyers are creatures of precedent. No doubt some diligent lawyer came up with a comprehensive set of by-laws many years ago which has been plagiarised repeatedly over time. Unfortunately, as those original by-laws get tested, more and more of them are being shown up as unlawful. What this means is that most bodies corporate have unlawful by-laws. If a committee doesn’t know what it’s looking for, it is a recipe for disaster when it comes time to enforce them. This is something many diligent committees learn to their should have known. The other key issue with a scheme’s by-laws is that they usually do not adequately cater for every by-law need of the building. This is because the by-laws have never been reviewed holistically with regard to the individual body corporate’s characteristics.