Can a resident manager enforce by-laws?
One of the most annoying parts of every resident manager’s life must be that knock on the door after hours with a whinge from an owner or a tenant about someone parking in ‘their’ spot.
So what is the legal position?
Firstly, it is very well accepted that a body corporate cannot delegate the power to enforce by-laws. Taking action for breaches of by-laws is something that only a body corporate can do. It cannot farm that right out to third parties – including resident managers.
Most caretaking agreements include a specific reference to the resident manager’s role when it comes to by-laws. The more modern caretaking agreements have a clause in which the resident manager must ‘monitor compliance with the by-laws and report to the committee any serious or persistent breaches of them’.
Older caretaking agreements usually have a clause along the lines of ‘police the observance of the by-laws of the body corporate’ with a corresponding right to ‘take action to the same extent that the body corporate itself can do so’.
Secondly, the responsibility to enforce by-laws will usually be a point of conflict with your committee, especially if your caretaking agreement contains an outdated clause to enforce the by-laws. These arguments are often fuelled by a committee’s inability to appreciate that enforcement of by-laws is limited to issuing contravention notices, then taking appropriate legal action.
A committee does not have the power to take the law into its own hands and physically prevent a resident from moving furniture in a lift that is not padded, or directing the building manager to do that. While at first glance, it seems appropriate to take immediate action to stop a by-law breach, the limited way to enforce by-laws recognises that taking this type of confronting action might only cause greater conflict and disharmony in a community setting.
By-law enforcement has been litigated. As an example of the types of decisions that can be produced, please click here to read our previous newsletter on this topic.
So, a few golden rules when it comes to these situations:
- It is not your role to physically enforce by-laws. You are not required to manhandle people out of the pool after hours or physically tow their cars. All you can, and should, do is make the people aware of the fact that they are breaching the by-laws. That might be a note under the windshield. If there are potentially dangerous issues (like a wild party in a unit), then call the police.
- Be aware of the different hats you may be wearing. One is as a caretaker and one is potentially as a letting agent. If the people in the pool after hours are owners then there is not much more you can do. If they are your tenants then your role potentially goes a bit further as letting agent. This is because if the body corporate breaches the owner or the tenants, then it will more than likely bounce back to you from the owner as their letting agent. Hopefully, your tenancy agreements / terms and conditions allow you to evict people if they breach the by-laws.
- Create a template for by-laws breach reports to send to your body corporate manager or committee. This would include the details of the breach including the date, time, the person complaining, what was complained of and the details of the breach. Reference names and registration numbers etc should be in this template. The form which the body corporate must use to enforce by-laws is here.
If you make sure that your template includes the information here the body corporate will be able to do what it has to.
Don’t be tempted to take the law into your own hands.
Of course, we can help with any of these issues if needed!