If you own a lot or are part of a committee in a scheme frequently used for holiday letting, it is never too early to start thinking about what impact Schoolies might have on you and your property.
For bodies corporate, onsite managers and lot owners, Schoolies can produce a range of issues and questions. As we approach the 2016 Schoolies season, it is timely to revisit the discussion about behaviour management in schemes providing accommodation to the annual influx of school leavers. I will address a number of body corporate specific matters in this column. Information about a range of Schoolie-related issues, not just body corporate issues, can be found at www.schoolies.qld.gov.au.
Access to balconies
In focusing 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 (the Act) a body corporate has control over common property.
However, it cannot unilaterally take action such as locking doors to restrict access to areas within a lot. A body corporate may instead consider information or education, which would be directed at all occupiers (including owners), about safe use and enjoyment of lots, including balconies. If a body corporate has concerns about the safety of a particular balcony attached to a lot, it may be prudent to start investigating those concerns sooner rather than later.
A good place to start would be the body corporate raising its concerns directly with the owner of the lot on which the balcony is situated. The Act contains provisions for lot owners and their responsibilities in relation to the maintenance of a lot. There may also be scope for a body corporate to take action against an owner if they do not adequately fulfil these responsibilities.
By-laws and scheme management
The by-laws for a community titles scheme provide the mechanism under the Act for a 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 (CMS).
A body corporate may make ‘house rules’ as a guide for the use of common property and amenities such as pools and tennis courts. 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. Furthermore, a by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealing with a lot. This means, for example, that a body corporate cannot force an owner to include a condition in a tenancy agreement precluding the use of balconies. A by-law also cannot impose a monetary penalty on an owner of a lot. In practice, this would mean a by-law that purports to levy an extra charge on a lot owner who lets their lot out to a Schoolie, would likely be found to be an invalid by-law.
Bodies corporate are nonetheless responsible for enforcing the registered by-laws. A body corporate may give a contravention notice to an owner or occupier where it reasonably believes that a 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 a contravention 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 a committee or a body corporate in a general meeting.
There is no provision in the Act for a 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)A 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 checking 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 a 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 towards achieving these goals is to explain to guests the
by-laws, facilities, and requirements for behaviour in a 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 a body corporate. A body corporate may wish to put forward a proposal to owners individually about how best to regulate the use of balcony areas and ensure safety during the Schoolies season.
Ultimately, locking balcony doors and/or including a condition restricting balcony access in a lease agreement is a decision for owners.