By-law basics – limitations on by-laws
In the previous article I discussed the capacity for a body corporate to make their own by-laws, and the application of section 169 of the Body Corporate and Community Management Act 1997 in particular. I will now discuss the legislative limitations on by-laws.
Section 180 of the act sets out several limitations which I will comment on in turn.
Inconsistency with legislation (section 180(1))
A by-law cannot be inconsistent with the BCCM Act or the applicable regulation module, or any other act. The by-law is invalid to the extent of the inconsistency.
So, a body corporate cannot seek to change or override legislative obligations by introducing a by-law. For example, a body corporate could not record a by-law passing its legislative maintenance responsibilities on to owners (except under an exclusive use by-law).
Likewise, a by-law cannot give someone (such as a committee member or a building manager) the authority to make a decision on behalf of the body corporate because a body corporate’s powers cannot be delegated.
However a by-law can be inconsistent with a local law about animals (section 180(2)).
Use of a lot (section 180(3))
If a lot is able to be used for residential purposes (for example, under the scheme’s development approval) a by-law cannot restrict the type of residential use.
This means, for example, a by-law cannot prevent a lot being used for short-term accommodation or require it to only be used for short-term accommodation, or restrict the type of occupiers of the lot. While there may be government restrictions on the type of residential use of a lot, these cannot validly be enforced through a by-law.
Dealing with a lot (section 180(4))
A by-law cannot prevent or restrict an owner’s dealings with their lot. So, an owner cannot be prevented from mortgaging, selling, leasing or transferring their lot. Also, a body corporate cannot impose restrictions on how, when or to whom an owner mortgages, sells, leases or transfers their lot.
For example, if a body corporate is seeking to market itself to retirees, it can’t require owners to only sell or lease their lots to persons over a certain age or persons without children.
Discriminating against occupiers (section 180(5))
A by-law cannot not discriminate between different types of occupiers.
For example, a by-law cannot restrict tenants from using areas of common property that owner occupiers can use. Similarly a by-law cannot impose obligations on the owners of lots that are not in the letting pool, that are not required of owners that are in the letting pool.
However, where there are different types of lots (such as commercial and residential lots), by-laws may impose different obligations for the different lot types as distinct from the occupier types.
Monetary dealing with a lot (section 180(6))
Other than in an exclusive use by-law, a by-law cannot impose a monetary liability on an owner or occupier of a lot.
For example, a by-law cannot impose a fine for breaching a by-law. Similarly, a by-law cannot impose an obligation on an owner or occupier to meet the body corporate’s costs in relation to any action or failure under the by-laws, such as in the event of damage to common property or if the body corporate takes debt recovery action. However if the owner or occupier has a monetary liability under the legislation (such as to pay levies and maintain their lot), a by-law could reference that.
By-laws that offend this provision are very common. The decision Nirayama Luxury Villas and Spa Residential [2013] QBCCMCmr 113 summarises several adjudicator’s decisions on this issue.
Unreasonable by-laws (section 180(7))
A by-law cannot be oppressive or unreasonable, having regard to the interests of all owners and occupiers and the use of the common property. This is perhaps the issue most frequently raised in disputes about the validity of by-laws.
What may be unreasonable or oppressive in a particular case will depend on the circumstances. However where a by-law seeks to restrict owners or occupiers from doing something, consideration needs to be given on how those restrictions will impact on the right of the owner or occupier to utilise their lot and common property and undertake normal activities. Where owners and occupiers will be inconvenienced by being prevented from doing something that they otherwise might reasonably expect to be entitled to do, consideration needs to be given to whether the restriction is necessary to protect the rights and interests of other owners and occupiers. Essentially, a restriction should be proportionate to the risk to others.
For example, in 3113 Surfers Paradise Boulevard [2014] QBCCMCmr 48 (paras 86-88) a justifiable interest in maintaining security in a scheme was found not to warrant an obligation on occupiers to notify the body corporate of any commercial visitor to a lot, regardless of the purpose or duration of their visit. This requirement was seen as an unreasonable imposition on an occupier’s personal affairs.
Particular concern arises where there are restrictions on normal domestic activities but no clear evidence that other occupants are likely to be adversely affected by the activity. Where a body corporate is concerned about potential impacts, it may be more reasonable to require prior consent for the activity with reasonable conditions. If the activity does then cause adverse impacts contrary to the conditions, and the owner or occupier does not address the concerns, consent for the activity could be withdrawn.
Sustainable housing (section 180(8))
Chapter 8A part 2 of the Building Act 1975 prohibits a body corporate from restricting certain measures to improve the sustainability of a lot. Specifically sections 246R and 246S of the Building Act 1975 provide that a body corporate cannot withhold consent for an owner to install photovoltaic cells and solar hot water systems “merely to enhance or preserve the external appearance of the building”. Section 180(8) of the BCCM Act confirms that a by-law that is not permitted under that legislation will be invalid.
Assistance animals
Finally I note a further limitation in section 181 of the BCCM Act. This section establishes the right of a person with a recognised disability, who relies on a guide, hearing or assistance dog, to have that animal onto their lot and common property. A by-law cannot exclude or restrict that right.
The person does not need permission from the body corporate to bring their dog onto the scheme, regardless of whether the body corporate would normally require prior approval for animals. The fact that an assistance animal is not a recognised guide, hearing or assistance dog does not mean the animal should not be permitted in a scheme. Rather, the purpose of the animal would be a factor for the body corporate, acting reasonably, to consider when deciding whether to approve the animal.
Bodies corporate should carefully consider the limitations on by-laws when reviewing their current by-laws and contemplating new or amended by-laws.
In the next article I will turn to the question of how to determine what by-laws apply to a scheme.
