Managing safety and behaviour issues in community titles schemes

Following last year’s tragic events involving falls from high-rise balconies both during the schoolies period and earlier in 2012, there has been public discussion about safety and behaviour issues in community titles schemes,

including some debate about attempting to restrict access to balconies during schoolies week.

Access to balconies – In focussing attention on how to prevent such devastating incidents it is important to examine the scope for body corporate action, including whether it is possible to restrict access to balconies.

Under the Body Corporate and Community Management Act 1997 a body corporate has control over the common property. However it cannot unilaterally take action such as locking doors to restrict access to areas within a lot.

By-laws and scheme management – The by-laws for a community titles scheme provide the mechanism under the act for the body corporate to control and manage the scheme property. The registered by-laws for a scheme can usually be found in schedule C of the Community Management Statement for the scheme.

A body corporate may make ‘house rules’ to guide the use of common property and amenities such as a pool or tennis court. However, while ‘house rules’ might provide useful guidance, they are not enforceable unless they are registered as by-laws in the CMS.

The act places some limits on the scope of by-laws. Importantly a by-law may not discriminate between types of occupiers. This means, for example, that a body corporate cannot prevent a schoolie from using parts of common property that other occupiers are entitled to use and for which there is no exclusive use by-law. A by-law also can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot. This means, for example, that the body corporate cannot force an owner to include a condition in a tenancy agreement precluding use of balconies.

The body corporate is nonetheless responsible for enforcing the registered by-laws. The body corporate may give a contravention notice to an owner or occupier where it reasonably believes that the person has contravened a by-law and where, given the circumstances, it is likely that the contravention will continue or be repeated. The purpose of this notice is to require the person to remedy the contravention. Under sections 182 and 183 of the act, the decision to serve a contravention notice can be made by the committee or by the body corporate in a general meeting.

There is no provision in the act to delegate the enforcement powers to a letting agent; however, the letting agent may report alleged contraventions to the body corporate through the completion of a form 1 notice (available from the BCCM Office or at

If an owner or occupier does not comply with a contravention notice, the body corporate can lodge a dispute resolution application with the Office of the Commissioner for Body Corporate and Community Management or an application for enforcement procedures with the Magistrate’s Court.

The body corporate cannot seek to enter a lot merely to see whether the by-laws are being complied with. Under section 163 of the act a body corporate or a person authorised by the body corporate, may enter a lot, only in order to perform work or find out whether work is necessary. The examples cited for section 163 do not extend to general by-law matters, such as to check the use of balconies.

In light of these limitations it can be a challenge for a body corporate to ensure that all occupiers (including owners, long-term tenants and those on a short-term holiday) can safely enjoy the facilities on offer in the scheme. Balancing the commercial interests of investment owners against the safety interests of persons enjoying the lots and common property can present greater challenges.

An important first step to achieving these goals is to explain to guests the by-laws, facilities, and requirements for behaviour on the scheme as soon as possible, preferably before entering a lease agreement. It should be remembered that an owner who leases their lot has additional options to regulate the use of the lot under the Residential Tenancies and Rooming Accommodation Act 2008, beyond those available to the body corporate. The body corporate may wish to take proactive steps now, and put forward a proposal to owners individually, about how best to regulate use of balcony areas and ensure safety during future schoolies periods.

Ultimately, locking balcony doors or including a condition restricting balcony access in a lease agreement is a decision for owners.

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