By-law Basics – Finding Your by-laws

Continuing the series of articles about by-laws, I will now turn to the issue of how to know what by-laws apply in a community titles scheme.

This may seem like a straightforward question for many bodies corporate and for most it is. However for others there can be confusion as to what by-laws apply. This is a source of frequent queries to the information service provided by the Commissioner’s Office.

Schemes established after 1997
In schemes established since the commencement of the Body Corporate and Community Management Act 1997 in July 1997, the by-laws will usually be recorded in the community management statement for the scheme. Any changes to the by-laws will require the recording of an entirely new CMS and so for these schemes there will only be one document to look to determine the by-laws. The CMS should be held in the body corporate’s records, but can also be obtained from the Titles Registry in the Department of Natural Resources and Mines.

Potentially a scheme can be registered without by-laws in the CMS and in that case the ‘default’ by-laws contained in schedule 4 of the BCCM Act will apply to the scheme. I note that this is the only circumstance in which the schedule 4 by-laws will apply to a body corporate.

It is also noted that where there is a layered arrangement, the CMS for the principal scheme’s CMS prevails over the provisions in the subsidiary scheme’s CMS (other than for the lot entitlements and applicable regulation module (BCCM Act, section 58).

Schemes established before 1997
Many of the around 25,000 schemes that were established prior to the commencement of the BCCM Act in 1997 have recorded a new CMS since 1997 which includes by-laws. For those schemes the situation will be the same as for post-1997 schemes – by-laws will be clearly listed in the CMS.
However it is for the pre-1997 schemes that have not recorded new or amended by-laws since 1997, that things can start to get complicated. To understand how to find the by-laws applying to these schemes, it is necessary to consider the transitional provisions contained in the 1997 legislation. Each plan registered under or before the Building Units and Group Titles Act 1980 automatically became a community titles schemes with the commencement of the BCCM Act on 13 July 1997. At that time an interim CMS was in place for each scheme. Then, if the scheme had not recorded a new CMS by 13 July 2000, the interim CMS became the recorded CMS for the scheme on 15 July 2000. Under that CMS the by-laws are those in effect at that date.

So the next step is to find out what previous by-laws were in place for those schemes.

If the scheme was established under the BUGT Act (which commenced on 3 November 1980) the by-laws will be those default by-laws contained in Schedule 3 of the BUGT Act along with additions, deletions and amendments made by the body corporate. Any changes to the by-laws under the BUGT Act needed to be recorded, but no consolidated set of amended by-laws had to be recorded. So, as a body corporate many have changed its by-laws many times, it will be necessary to look at every recorded change to find out all of the by-laws applying to that scheme.

For schemes that were registered under the Building Units Titles Act 1965, the situation is even more difficult. When the BUGT Act commenced in 1980 its transitional provisions (section 5(10)) established that the former by-laws that were not inconsistent with the BUGT Act continued along with any of the default by-laws in schedule 3 of BUGT Act that were not inconsistent with the former by-laws.

The BUTA Act provided that the by-laws were those set out in the first and second schedule of the BUTA Act until they were added to, amended or repealed by the body corporate. First schedule by-laws required a unanimous resolution to change and had no effect until they were registered. The second schedule by-laws required a special resolution to change but there was no requirement for them to be registered.

The BUTA first schedule – which largely covered procedural matters – was inconsistent with the BUGT Act and so had no further effect. The second schedule provides by-laws that a proprietor shall not use their unit for any purpose which may be illegal or injurious to the reputation of the building; make undue noise in or about any unit or common property; or keep any animals on his unit or the common property after notice from the council (which means the body corporate).

So the by-laws applicable to a scheme registered under BUTA that has not recorded a new CMS are:

1. The by-laws in the second schedule of the BUTA as amended under the BUT Act;
2. Any changes to the by-laws that were recorded under the BUGT Act; and
3. Any BUGT Act schedule 3 by-laws that are not inconsistent with 1 and 2 above.

It is also noteworthy that By-law 3(f) of the first schedule of BUTA allowed a body corporate to decide to grant exclusive use rights to an owner but did not require that these be recorded or included in a by-law. This means that in pre-1980 schemes there is a potential for exclusive use rights to exist that may be difficult to specifically identify through the CMS or any other straightforward search.

The situation for pre-1997 schemes who have not recorded a new CMS is far from ideal. It would be desirable for bodies corporate that still have BUT Act and BUGT Act by-laws to record a new CMS with a consolidated set of by-laws – even if they simply adopted the by-laws contained in schedule 4 of the current act – so that all owners and occupiers can clearly understand and find the by-laws applicable to them.
In the next article I will look at the enforcement of by-laws.


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