Body Corporate by-laws

The by-laws are the rules for the building outside those imposed by legislation.

By-laws can come into existence through any number of means, but most buildings probably still have by-laws based on the first set they were registered with. Those by-laws may (or may not) adequately cater for the needs of the building today.

A common misconception is that if the by-laws are registered they are lawful and are therefore valid or enforceable. This is not the case.  When registering a CMS the Titles Office merely looks at the form of the document, not the content of the by-laws in it.

More information on by-laws and related issues:

Webinar: How-to guide to reviewing by-laws 
Webinar: By-law enforcement, the flowchart guide
By-law Review Service
What are body corporate by-laws?
5 most common unlawful by-laws

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.

By-law review service

Our highly experienced team are ready to look at your by-laws and tell you whether they are valid and enforceable. Click below to get a free assessment of your by-laws.

Enforcing your by-laws

Getting the right advice on whether a by-law is lawful should be the first step in any by-law dispute. There is no point trying to enforce something that is simply unlawful.

After that, enforcing by-laws can be tricky. There are processes and procedures that need to be followed before any proceedings are commenced. Ignore those, and the enforcement action will simply fail.

There also may be other ways that you may consider addressing the issues that are causing the concerns.  We actively guide you around alternative methods to litigation where we see possibilities to do so.

We can provide fixed fee quotes for by-law enforcement.

Speak to our Team

If you have an inquiry or a question that we can help with, please contact us through the following form and one of our experts will be in touch with you shortly.

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