Reviewing your by-laws
We can advise on a complete review of the CMS or a discrete review of a single or number of by-laws. We can also assist with providing by-laws that address a new issue or issues facing a building.
When it comes to any by-laws, we always start by referring bodies corporate to three sections of the legislation which we think are very important.
The first is section 167 which provides:
‘The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that:
- causes a nuisance or hazard; or
- interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
- interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.’
This is what the Act requires with respect to conduct. For conduct to be able to be restrained under the by-laws (or the Act for that matter), it must interfere unreasonably with another owner. That means that reasonable interference is allowable.
The second provision is section 169 which provides:
The by-laws for a community titles scheme may 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:
- lots included in the scheme; and
- common property, including utility infrastructure; and
- body corporate assets, including easement areas relevant to common property; and
- services and amenities supplied by the body corporate;
To the extent any by-laws go beyond those parameters, they are unlawful.
The final provision is section 180 which limits what by-laws can include. This prevents by-laws from:
- being inconsistent with the legislation (such as restricting a reasonable interference);
- restricting the style of residential use (i.e., short term as against long term occupation);
- restricting a transmission, transfer, mortgage or other dealing with a lot;
- discriminating between different types of occupiers (i.e. only owners can use the pool);
- imposing a monetary liability (such as a fine or the like); or
- being oppressive or unreasonable in the circumstances.
All by-laws are subject to those limitations.
When we advise on by-laws, those provisions are key considerations as well as whatever the latest decisions have been from the Commissioner’s Office that relate to enforcement of by-laws. What we can guarantee is that when you are advised by us that you will be given the most up to date advice possible.
From a costs perspective, we can tailor a fixed fee proposal for any brief. Where we do a global review of by-laws, we have a very structured advice program where we actively engage with you around what the needs of the building are and frame the new by-laws in light of that.
By-law review service
Our highly experienced team are ready to look at your by-laws and tell you whether they are valid and enforceable. Click below to get a free assessment of your by-laws.
