By Laws and Regulations
How By-laws are Made
The Community Management Statement CMS specifies the by-laws.
A change in the by-laws is made through the Body Corporate lodging a request for a new statement.
This statement has to be recorded by the Registrar of Titles.
To change, add a new or delete a by-law requires:
- for any ordinary by-law – a Special Resolution;
- for an Exclusive Use by-law – a Resolution Without Dissent; and
- for a by-law under an order from an adjudicator or a court – an Ordinary Resolution.
A by-law comes into force on the day the registrar records the Community Management Statement CMS which includes the by-law or on a later date noted in the by-law.
It is a detailed process to modify the by-laws in any way.
To change one word means the entire CMS has to be redrafted and processed – a costly exercise.
Restrictions on By-laws
A by-law must be consistent with the BCCM Act and the scheme’s Regulation Module or other laws, otherwise it is invalid to the extent of the inconsistency.
A by-law cannot:
- prevent or restrict a transmission, transfer, mortgage or other dealing with a lot
- it must not discriminate between types of occupiers
- impose a money penalty against a lot
- it cannot exclude or restrict a blind or deaf person from having or keeping a guide dog.
If a by-law is oppressive or unreasonable or invalid, an adjudicator may make an Order requiring the Body Corporate to remove the by-law or to restore an earlier by-law.
Exclusive Use By-law
An Exclusive Use by-law is a by-law that attaches to a lot and gives the occupier of the lot exclusive use to the rights and enjoyment of, or other special rights about a specific part of the common property or over a body corporate asset, but not over utility infrastructure. – example additional storage space in a basement.
The authorization is given by the Body Corporate passing a Resolution Without Dissent to consent to the recording of a new Community Management Statement CMS that contains the Exclusive Use by-law.
As part of the by-law, the owner of the lot may be required to make a “one off” payment or make periodic payments to the Body Corporate or to owners of other lots or to both of them.
Reporting By-Law Contraventions
Any resident can report a By law contravention to the Body Corporate Committee and it is up to the Committee to decide on what action they will or won’t be taking.
The On Site residential Manager is NOT there to police any of the By Laws or to take action regarding By Law contraventions.
However, they will normally advise or discourage residents from such contraventions.
The On Site residential manager is there to report the contraventions to the Committee for them to action.
Every decision to take action against residence who contravene the By Laws rest with the Body Corporate Committee.
Contraventions of the By-laws
Breaches of the by-laws (eg. persistent acts that deny the peaceful enjoyment of the premises by a neighbor) are a serious problem.
If the Body Corporate reasonably believes a person is contravening a by-law, the Body Corporate may give the person:
- a continuing contravention notice if it is likely the breach will continue
- a future contravention notice if it is likely the breach will be repeated
The contravention notices require the person to stop the breach of the by-law.
The owner or occupier of a lot in the scheme (complainant) who reasonably believes another person has contravened a by-law and it is likely the contravention will continue or be repeated, can request the Body Corporate to issue a contravention notice against that person.
The Body Corporate must advise the complainant within 14 days of receiving the request that a Notice has been actioned.
A copy of a contravention notice,given to a person who is not the lot owner (eg. a tenant) must be sent to the lot owner as well.
The Body Corporate can also use the dispute resolution process of the BCCM Commissioner’s Office to settle the matter.
Contravention Notices
Maintenance Costs
As part of the Exclusive Use by-law, the Body Corporate may require the owner of the lot to meet certain obligations such as, maintaining that part of the common property which the by-law refers to.
If the by-law does not state who is to pay the maintenance and operating costs involved, the owner is taken to be responsible for the costs for the part of common property to which the exclusive use by-law applies.
Acts vs Regulations
Acts and Regulations are quite different as they often have similar titles and obviously deal with the same subject.
Knowing whether it is an Act or Regulation that is required is important to saving you time:
- An ACT is legislation passed by the Parliament. Acts, can only be amended by another Act of Parliament. Acts set out the broad legal/policy principles.
- REGULATIONS, RULES, CODES etc. are commonly known as “subsidiary legislation” and require publishing in the Government Gazette to become legal. These are the guidelines that dictate how the provisions of the Act are applied.
They may also contain pro forma official forms that are required under the Act. Regulations and schedules to Acts can only be amended by a notice published in the Government Gazette.
Generally, if its the legal/statement of Law that you want, then it is the Act that is required.
If it is implementation detail, then the Regulation is required.