By-laws – love them or hate them, they’re an integral part of life in a body corporate scheme. They exist to benefit all lot owners, and enable a diverse group of people to live in close proximity in relative harmony. By-laws may sometimes seem restrictive, but they ensure the smooth functioning and management of a building and ensure a sense of order is maintained throughout the scheme. And once you’ve bought into a body corporate scheme, you’re obliged to follow them.
But what if you don’t?
If you intentionally or unintentionally break a body corporate by-law
Perhaps you didn’t read the by-laws of your scheme very thoroughly, or it’s been a while and you’ve forgotten exactly what some of them say. You accidently break one of the by-laws – say you start parking regularly in a space where you’re not allowed to park, without realising it’s a problem. Or perhaps you do know the by-laws but choose not to comply with them. What happens?
First, it is the responsibility of the body corporate committee to enforce by-laws – and they are enforceable (as long as they are lawful). The committee MUST enforce the by-laws, once
they are aware that they have been contravened. This is to ensure that all the other owners and occupiers are not disadvantaged by the by-law contravention.
The first step the committee will usually try is an informal conversation with you (the offending party) to see if the problem can be easily fixed. They will enter into discussion and negotiation with you, in the hope of self-resolution. This often works, particularly when people are unaware that they have contravened a by-law. You may simply decide to start parking somewhere else once you realise that where you were parking was unlawful.
If this approach fails to yield results, and you choose to continue to break the by-law, the committee will adopt a more formal approach. They will issue you with a notice of contravention of the by-laws. Of course, you have the choice to comply with the contravention order or not, but the sending of this notice allows the committee to now take action to enforce the by-law.
If you comply with the notice – great. Problem solved. If not, the committee can take things even further, and may apply for an adjudication order. An adjudicator will preside over this more formal process, and will make a decision in the matter after considering all the relevant information. The committee may also choose to start proceedings in the Magistrates Court to deal with your offence. This may lead to you having to pay a fine.
The caveat – unenforceable by laws
As mentioned above, by-laws are only enforceable if they are lawful. The first step in any dispute should be determining if the by-law is actually lawful.
Unenforceable by-laws will:
· Be inconsistent with the legislation (such as trying to restrict a reasonable interference)
· Try to restrict the style of residential use (such as short-term or long-term accommodation)
· Be oppressive or unreasonable in the circumstances
· Discriminate between different types of occupiers (such as only allowing some owners and not others to use particular facilities)
· Impose a monetary liability (a fine)
· Restrict a mortgage, transfer, transmission or other dealing with a lot
As outlined in Section 169 of the Body Corporate and Community Management Act 1997, lawful by-laws can only provide for the following:
· the administration, management and control of common property and body corporate assets;
· regulation of, including conditions applying to, the use and enjoyment of:
o lots included in the scheme; and
o common property, including utility infrastructure; and
o body corporate assets, including easement areas relevant to common property; and
o services and amenities supplied by the body corporate;
Any by-law operating outside these parameters in unlawful, and therefore cannot be enforced.
So, the upshot is, if you contravene a by-law, you’re unlikely to get away with it, and may end up significantly out of pocket after going through a tiring legal process. Think about whether it’s worth it – or whether there are other ways to achieve your aims. Contact us here at Capitol BCA if you’d like some advice: https://www.capitolbca.com.au/contact-us/