What are some of the By-Law Body Corporate Questions we get asked?
In this video, Body Corporate Associate Tom Robinson addresses some of the questions we are asked regarding Body Corporate By-Laws.
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Transcript
Hi, I’m Tom from the OMB Solicitors team here, and I’m an Associate in our Body Corporate team. Today, we were going to talk about bylaws and also the five frequently asked bylaws that we deal with.
Later on in the video, I’ll also be supported by Annaka Faulkner, who’s a paralegal in our Body Corporate team, to go through those questions. But I thought before we get started, we’d also look at a bit of the history of where we find our bylaws and why bylaws are so important.
Our current legislation is the Body Corporate and Community Management Act, otherwise known as the BCCMA. It came into effect in 1997, as part of that legislation change, it was a requirement that all bodies corporates in Queensland, registered or recorded with Queensland land titles a new Community Management Statement.
Now that CMS is the one and all document that is to include all information of a body corporate that’s generally required at any time, being the specific details of the lots of the body corporate, the survey plans, if there’s an exclusive use plans attached, contribution and interest schedule lot entitlements, but also, most importantly, our bylaws.
Before that, we were regulated under another legislation which is known as a BUGT or Building Units and Group Titles Act, where it didn’t really have community management statements, which means when we transitioned to our current legislation.
There was a three year interval that bodies corporates in Queensland, being every body corporate, was required to record this new CMS, and if they didn’t do that within three years, so by the year 2000, then the Queensland Land Titles Office would record a standard or default CMS.
That default CMS is only about a page long, doesn’t include a lot of information and has limitations with respect to the actual bylaws that are applicable to the schemes. But whereas those CMSs that we record since that time in the appropriate forms include your bylaws and are usually valid and forcible under the legislation.
When we have to look at those standards, one page CMSs, usually to actually be able to identify those bylaws, we have to do a number of searches, including a historical title search and then identifying if there have been any change of bylaws.
This can be quite a timely, long and costly process because there can be up to 10 or 20 of these change of bylaws documents, and even then, if we do all those searches and we piece together all of those bylaws, it can still be a matter of missing documents and things like that being the time that has passed.
So it’s very important for a body of corporate to check to see what is their current registered CMS, and then if we need to record a new one and move away from that default one page CMS, that is a priority for the body of corporate.
So we have that nice and new compliant one and all document of a new community management statement. So with all that information in mind, we thought we’d now discuss the five frequently asked questions that we come across in our working day to day basis.
One of the most common questions that comes across my desk and in our office is to do with the short term letting increase that we have in Queensland, specifically, Airbnb. What we usually come across is, are owners allowed to use their lot for a short term accommodation purpose? Or or can a body corporate restrict that?
The short answer to the body corporate’s question is no. A body corporate cannot restrict an owner renting or letting their lot on a short term basis. So the answer to the owner is yes, they can do that and they can operate their lot through Airbnb.
There are obviously council requirements that owners must ensure that they comply with when they go through a short term accommodation process. But that doesn’t mean the body corporate doesn’t have any ability to regulate the use of someone using their lot through Airbnb.
Specifically, what a body corporate might look at doing is putting bylaws in place that take into account the increase in nuisance or noise or use of recreational facilities in the body corporate due to that increase in short term letting.
Another question that comes across my desk quite often from owners and committees and body corp managers is how do we regulate alterations to lots and or common property?
Dealing with the common property aspect first, depending on the way the scheme is subdivided, we usually have two types of subdivisions in Queensland, being a building format plan of subdivision or a standard format plan of subdivision.
Under a building format plan or BFP, generally speaking the alterations to common property, which is generally the whole exterior of the building or buildings, is regulated under the legislation.
What we can look at regulating in the bylaws is just a bit of a replication of what’s in the legislation and taking it a little bit further to make sure that the aesthetics and the appearance of the scheme do not change without getting the appropriate consent required under a body corporate.
When we deal with lot renovations, that’s when it becomes a bit more specific, and again, dealing with it from a building format plan subdivided scheme, that’s the buildings and the bodies corporates that generally have more impact from lot renovations.
Specifically, your BFPS are more your townhouses that share joint walls or your high rises that have ceilings and floors that are obviously dividing lots. So, renovations to floor types, so hardwood flooring is always going to be an issue in terms of acoustic levels.
So as part of that, your bylaws are where you need to look at regulating how those types of renovations can occur. For example, dealing with hardwood flooring, you might need to get acoustic reports from the owner and so forth, certificates of certification, and all those matters can be included in the bylaws itself.
When we look at the legislation, it’s very limited in what it requires for any alterations to lot property. Rather, it only regulates that an owner must keep it in a clean and tighter condition. When we look at your standard floor plan lots, they are different from the perspective of usually the aesthetics or the exterior of the scheme is actually the lot owner’s responsibility.
So, they’re responsible for painting, replacing their roofs and all those matters because it’s contained within their surveyed lot area. From a bylaw perspective that, that exterior of the lot is an alteration to lot property and again is covered from that perspective of making sure that we don’t have a bunch of multi-coloured lots within our bodies corporate.
What I might do now is hand you over to Annaka Faulkner, who’s one of our paralegals, to talk about the other types of frequently asked bylaws that come across our desk in our office.
Hi, I’m Annaka Faulkner, and I’m one of the paralegals here in the body corporate team. One of the frequently asked questions that we get here at OMB Solicitors in relation to bylaws is whether a body corporate can legally tow a vehicle that has been parked illegally on common property.
The answer is yes, but under certain circumstances. The body corporate must obtain an order from an adjudicator in relation to towing. If you do not have an order from an adjudicator, you will not be able to tow the vehicle, your CMS needs to include a towing bylaw, which the adjudicator may rely upon when seeking an order in relation to towing.
Another frequently asked question that I get in relation to bylaws is regarding pets and how body corporate can regulate owners keeping pets within their lots. So a body corporate can regulate them through their CMS.
So the bylaws cannot be prohibitory in relation to pets, but they can set out specific conditions that lot owners must comply with in order to keep a pet inside their lot. Another frequently asked question that I get in relation to bylaws is communications.
We get a lot of questions in relation to owners sending copious amounts of correspondence, whether it’s to committee members, whether it’s to body corporate managers. A lot of them, they might send 10, 20, 30 bits of correspondence daily, weekly, so they are ways that you can regulate this.
You can regulate owners sending correspondence via your community management statement again, you have to make sure that you have a nuisance by law and a correspondence by law, which sets out certain conditions that owners can comply with in relation to sending in correspondence. In the instance that a owner breaches these bylaws, then you can issue contravention notices.
Those are our five frequently asked questions about bylaws that have been coming across our desks at the moment. But stay tuned for further podcasts and articles which will deal with how do we create enforceable bylaws that are not prohibitory or oppressive or unreasonable and valid and enforceable under our legislation.
But if you have any questions in the meantime, please do not hesitate to contact myself, Tom or Annaka from our office, and we’d be happy to assist you with any needs regarding your CMS and your bylaws. Thank you.