Aaaaah, Schoolies! It’s almost that time of year again…

AccomNews Wednesday, August 5, 2015

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It’s an event that can create both excitement and trepidation – schoolies!

For bodies corporate, onsite managers and lot owners, schoolies can produce a range of issues and a range of questions. As we approach the 2015 schoolies season, it is timely to revisit the discussion about behaviour management in schemes providing accommodation to the annual influx of school leavers.

Access to balconies

In focussing attention on how to prevent tragic accidents, as well as the interference of the use and enjoyment of other lots that may not be occupied by schoolies, 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.

A body corporate may make ‘house rules’ as a guide for the use of common property and amenities such as a pool or tennis court. That said, it is important to note that 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 and one of those limits, importantly, is that 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 for the body corporate to delegate the enforcement powers to an onsite manager, although they may report alleged contraventions to the body corporate through the completion of a Form 1 notice (available at www.qld.gov.au/bodycorporate).

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 the 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 also 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 put forward a proposal to owners individually about how best to regulate use of balcony areas and ensure safety during schoolies season. Ultimately, locking balcony doors or including a condition restricting balcony access in a lease agreement is a decision for owners.