Body Corporate Law - When bylaws Act up
We are often asked to review the bylaws applying to a communitytitle scheme.
Regularly, our review identifies bylaws dealing with mattersthat are covered by provisions of the Body Corporate and Community ManagementAct or by the Regulation Module governing the scheme.
In our view, bylaws should not deal with matters provided for inthe legislation.
If a bylaw simply restates a legislative provision, what happensto the bylaw in the event the legislation is amended in a manner which makesthe bylaw inconsistent with the amended legislation? The bylaw will then offendthe legislation and will be invalid.
One example we often come across is a bylaw which states amember of the committee can enter a lot on say 24 hours’ notice.
Such a bylaw, if challenged, would be ruled invalid as itoffends section 163 of the Act.
Section 163 is the legislative provision dealing with the powerto enter a lot.
The section provides a person authorised by the body corporatemay enter a lot or common property the subject of an exclusive use grant andremain on the lot or the common property while it is reasonably necessary:
- to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or
- to carry out work the body corporate is authorised or required to carry out.
Other than in the case of an emergency, at least 7 days writtennotice of the intended entry must be given to:
- the owner or
- the occupier - if the owner is not the occupier.
Importantly, the right to entry under section 163 is onlyfor the reasons stated in the legislation. One cannot simply exercise the rightto look at the china!
Like everything In BoCo land, even when it comes to exercisingthe right under section 163, it must be reasonable for the body corporate to doso.
There is a recent decision of the Queensland Civil andAdministrative Tribunal (Appeals) (“QCATA”) on appeal from an Adjudicator’sdecision, stating it would not be reasonable for the body corporate in questionto enter a lot, as distinct from the attached exclusive use balcony, in orderto carry out routine gardening on the common property garden bed adjoining theEU balcony – even though the common property garden bed is only reallyaccessible through the lot.
Regrettably, at the time of writing, the reasons for the QCATAdecision have not been published. I can already sense the desire for another“Activated” on the issue in the event QCATA publishes its reasons.
If your bodies corporate wish to have their bylaws reviewed,Active Law would be delighted to assist, as we would be with any body corporatelegal issue.
Until next time – keep “Active”.
Warm regards
Mark
Disclaimer:
Reliance on content the material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
