Common Invalid By-Laws (QLD)
By-laws remain one of the most consistent types of enquiry we get every day and the enquirers are a very broad church.
These enquiries include:
– Owners wanting to know what to do about their body corporate breaching them
– Resident managers about whether they can enforce by-laws (which they shouldn’t)
– Bodies corporate wanting complete reviews (or to check what they have drafted)
One of the most commonly misunderstood aspects of by-laws is that the titles office reviews what is lodged before registration. They don’t check them for validity and lots of people assume that if they are registered they are lawful.
That is simply not the case and many of the by-law issues we see, arise from that mistaken assumption. This article has examples of some of the most common by-laws we see that are unnecessary or unlawful.
If your scheme has these any of these by-laws, then perhaps you should consider having them reviewed before someone mistakenly attempts to enforce something that just isn’t lawful.
This article was contributed by Frank Higginson, Director – Hynes Legal.
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Many thanks, Frank.
Where do we begin on the CMS’s at the ecovillage which were ruled in need of urgent revision in 2011 after an adjudicator took a look into them. The comments were scathing. It also makes we curious as to whether a CMS such as ours at the ecovillage can be properly re-registered with the clauses that are illegal still in place? This has happened on at least two recent occasions at the Principal Body Corporate level.
The Village Design Panel (VDP) still holds and charges bonds and fees for its work too – something that seems to fall within the scope of your comments too? Kind regards Doug
I have seen your CMS Doug and it is the proverbial dog’s breakfast. The reality is that if by-laws that are unlawful are sought to be enforced they can be challenged and will not be enforceable.
Clearly the reason for this email is a complaint against me which i will at this stage presume some noise which a contractor has been making due to me landscaping my yard which was left by the previous owner in an unruly state in which no owner would want to exist in. i have handed this email to my legal representative with the view to a harassment charge should this be taken any further. I will not tolerate unreasonable interference by anyone in the neighbourhood. .I await a reply. Lee Carroll
Not from my end Lee!
Hi there,
Our committee is trying to have a by-law passed to implement a ‘booking system’ for our only rooftop common area. The rules are if the rooftop is ‘booked’ by a resident through the committee then nobody else id allowed to use the rooftop shared space for the period that it has been booked for.
The rooftop can hold up to 100 persons easily
Our previous Strata Manager ruled this motion out of order in accordance with section 104 of the BCCM (Accommodation Module) Regulation 2008 for the reason that the proposed motion unenforceable as the common property is in use for all occupants.
The committee is now trying to have this passed again as they have changed our Strata Management who agrees this is a valid by-law
This is proposal causing friction within the community – is it legal?
A committee and a by-law can regulate the use of common property reasonably. If you only have one BBQ, is it reasonable that one person uses it every Saturday afternoon every day of the year? I don’t think so. Rules round use that are reasonable are going to be enforceable.