WHAT BY-LAWS ARE LEGISLATED TO PROVIDE FOR
March 9, 2022
By-laws are an integral part of the administration of a body corporate.
In an earlier article we discussed the importance of making sure by-laws were correct – including the requirements of any by-laws, how by-laws are changed, and how by-laws can be enforced.
In a series of articles that we will publish over the coming weeks we will discuss by-laws in more detail. The aim is to arm committees and body corporate managers with the knowledge to help them avoid unlawful by-laws and give them the tools to successfully administer any scheme.
We start with what by-laws are legislated to provide for.
The relevant section of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) is 169(1) which provides:
The by-laws for a community titles scheme may only provide for the following—
(a) the administration, management and control of common property and body corporate assets;
(b) regulation of, including conditions applying to, the use and enjoyment of—
(i) lots included in the scheme; and
(ii) common property, including utility infrastructure; and
(iii) body corporate assets, including easement areas relevant to common property; and
(iv) services and amenities supplied by the body corporate;
(c) other matters this Act permits to be included in by-laws.
Where many by-laws come unstuck is the emphasis of the important word, regulation. Adjudicators interpret regulation to mean by-laws cannot prohibit certain conduct.
In simple terms, this means that a by-law cannot ban or stop something from taking place and is why:
- there can be no buildings with a no pets by-law;
- smoking cannot be banned in its entirety; and
- short term letting and Airbnb cannot be banned (among other reasons we address in a later instalment).
Despite this requirement, regulation does not mean that a committee is powerless. If a by-law is carefully and properly drafted, a committee can be empowered with the necessary control to properly and reasonably administer the body corporate.
For example, the following by-law would be unlawful as it prohibits conduct:
An Owner or Occupier must not allow an auction of their lot to take place on scheme land.
However, if the by-law was amended to include the bold underlined words, it becomes lawful and gives the committee the ability to regulate auctions within the scheme:
An Owner or Occupier must not, without the prior written approval of the Body Corporate, allow an auction of their lot to take place on scheme land.
The by-law is now compliant as it does not prohibit the conduct, but allows the committee the ability to grant or refuse a request to hold an auction. However, when considering the request the committee just has to act reasonably when taking into account the details of the request including the impact on the scheme.
In our next article we will discuss what cannot be included in a by-law and why.