If a Body Corporate believes that an owner or occupant is breaching the by laws, the Body Corporate have an obligation under the Body Corporate and Community Management Legislation to enforce the by laws.
We have touched on this subject in various other articles, however, we felt that it was timely to provide a refresher on the topic, particularly as the order that we have reviewed this month involves whether the Body Corporate has acted to enforce its by laws and whether they have enforced the by laws in the way provided under the Act.
The steps that should be taken by a Body Corporate include (but are not limited to);
- Attempt at self resolution e.g. letter to the owner or occupant requesting that the by laws be adhered to, noting in the letter the by law that it is believed they are in breach of
- If No Action – Resolution of the Committee, by way of either formal meeting or VOCM (Vote Outside of Committee Meeting) resolving that the Body Corporate issue the owner/occupant with a formal breach notice, this is either a:
- Continuing Contravention Notice (Form 10)
- Future Contravention Notice (Form 11)
- If No Action – the Body Corporate should decide to lodge an application for conciliation through the Commissioners Office, or if the Commissioners Office are satisfied that the Body Corporate have attempted self resolution, application can be made for a final order.
- If still No Action – the Body Corporate should decide whether to make application to the Magistrates Court that the owner or occupant abide by the order given by the Commissioners office.
In the Adjudicators order that we have reviewed this month, the Body Corporate applied to the Commissioners Office for an order that the Owner of Lot 17 remove items that were being stored on top of his shed that is located in his exclusive use area in accordance with the relevant by law that stated:
12.2 Such owners shall
(g) not, without the previous consent in writing of the Body Corporate, store any items on the roof of the shed in the Exclusive Use Space. In assessing any request for approval under this by-law, the Body Corporate will consider the impact on the safety and security of the basement, other lot owners and any insurance implications.
The Adjudicator sought submission from the Lot Owner, who did provide a response to the application noting that the Committee were acting unreasonable in that it had originally denied his request to store the items on the roof of his shed, however the Adjudicator noted that the dispute being reviewed was not about whether the Committee acted unreasonably in denying the owners application, but rather that he has not complied with the by laws.
In this case, the Adjudicator ruled in favour of the Body Corporate and ordered the Owner of the Lot to remove the items from the roof of the shed in the exclusive use area.
The full order can be read – http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2020/378.html
Also – for further information from the Department of Justice Website – https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/enforcing-by-laws