Active Law: When By-laws Act Up

Image: Habitat on Ashgrove – Mosaic Property Group 

We are often asked to review the bylaws applying to a community title scheme.

Regularly, our review identifies bylaws dealing with matters that are covered by provisions of the Body Corporate and Community Management Act or by the Regulation Module governing the scheme.

In our view, bylaws should not deal with matters provided for in the legislation.

If a bylaw simply restates a legislative provision, what happens to the bylaw in the event the legislation is amended in a manner which makes the bylaw inconsistent with the amended legislation? The bylaw will then offend the legislation and will be invalid.

One example we often come across is a bylaw which states a member of the committee can enter a lot on say 24 hours’ notice.

Such a bylaw, if challenged, would be ruled invalid as it offends section 163 of the Act.

Section 163 is the legislative provision dealing with the power to enter a lot.

The section provides a person authorised by the body corporate may enter a lot or common property the subject of an exclusive use grant and remain on the lot or the common property while it is reasonably necessary:

  1. 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
  2. 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 written notice of the intended entry must be given to:

  1. the owner or
  2. the occupier – if the owner is not the occupier.

Importantly, the right to entry under section 163 is only for the reasons stated in the legislation. One cannot simply exercise the right to look at the china!

Like everything In BoCo land, even when it comes to exercising the right under section 163, it must be reasonable for the body corporate to do so.

There is a recent decision of the Queensland Civil and Administrative Tribunal (Appeals) (“QCATA”) on appeal from an Adjudicator’s decision, stating it would not be reasonable for the body corporate in question to enter a lot, as distinct from the attached exclusive use balcony, in order to carry out routine gardening on the common property garden bed adjoining the EU balcony – even though the common property garden bed is only really accessible through the lot.

Regrettably, at the time of writing, the reasons for the QCATA decision 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 corporate legal issue.

Author: Mark Mellick, Active Law