Are your By-laws enforceable? – by Tammy Wills, Associate
Apartment living in Queensland is regulated by the Body Corporate and Community Management Act ‘(the Act’). The Act provides that apartment complexes must have a set of by-laws that all residents and visitors must comply with. The by-laws are a set of rules that regulate how owners and occupiers use their property (also known as ‘Lots’) and the common property and generally address matters such as:
- the outside appearance of a property and what must be done before making any changes, such as installing any privacy screens on your balcony;
- where owners and visitors can and cannot park their vehicle;
- whether owners can have pets in their apartments;
- the use of common facilities, such as pools and tennis courts or communal barbeque areas;
- ensuring that owners and occupiers do not cause a nuisance to others in the Scheme, which may involve restricting loud music after a certain time or restricting the flooring material in a residential tower.
The above are but a few examples of the types of matters regulated through by-laws. Owners and Body Corporate Committees should be aware that not all by-laws are enforceable. By-laws may only address matters that are noted in the Act, such as the administration, management and control of common property and Body Corporate assets. A By-law must not be oppressive or unreasonable and have regard to the interests of all owners and occupiers of Lots included in the scheme.
What is oppressive or unreasonable depends on the individual circumstances surrounding the by-law and its enforcement. As a general rule, a by-law that completely prohibits an action without the option to request the consent of the Body Corporate Committee is considered unreasonable. This would mean that:
- by-laws prohibiting any alteration of the external appearance of a lot, without the option to request the consent of the Body Corporate, would be unreasonable;
- by-laws that prohibit any pets in an apartment, including small pets such as fish and reptiles, would be unreasonable;
- by-laws that prohibit use of swimming pools past a certain time, without considering the individual user’s circumstance or whether the use would cause a nuisance, would be unreasonable;
- by-laws that allow an owner’s vehicle to be towed, and that pass the cost of the towing on to the owner, would be unreasonable.
A by-law may be enforceable where it allows the owner to do any act only with the permission of the Body Corporate Committee. The decision on whether to allow or prohibit the owner doing the act must then be reasonable, and a Body Corporate cannot unreasonable withhold consent to requests. The following decisions would be unreasonable and unenforceable:
- the Body Corporate consenting to an owner having a pet, but restricting the size of that pet to 5 kilograms and under – such a decision has not considered the type of animal, or its temperament;
- the Body Corporate refusing to allow an owner to install a privacy screen on their balcony, without providing any reasons, and where other owners have previously installed such items – such a decision does not give any reasons for the decision or consider the overall appearance of the complex.
The above matters are only an overview of the types of by-laws and decisions that may be considered unreasonable under the Act. Miller Sockhill Lawyers can assist both owners and Body Corporate Committee’s determine whether the by-laws for a Scheme, or any decisions made in relation to them, are reasonable and enforceable.
Please contact Tammy Wills, Associate should you have any queries in relation to the Body Corporate matters.