British wit and raconteur GK Chesterton made the pithy observation, ‘when you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws’.
When it comes to living in a strata title community, the by-laws ought to be ‘the big laws’ – the broad common sense rules agreed to by all owners to maximise the enjoyment of all residents.
Queensland does not set out model by-laws for body corporate. This means there is a great diversity in the by-laws which exist, as every different Body Corporate will have by-laws specific to that Community.
Where a community has custom by-laws specifically relating to their property, these should be specifically highlighted to potential purchasers and tenants to avoid inadvertent breaches. By-laws aren’t merely suggestions – they are legally binding on all residents.
Common sense applies to enforcing by-laws. A quick verbal reminder of the by-laws in passing is likely to be enough for most residents, including those who may be simply unaware of a particular by-law, or to jog the memories of those who may have conveniently ‘forgotten’. However if the breach occurs on a regular basis, or too many residents fall foul of a particular by-law, a letter from the Committee should be sent to every property and perhaps placed on a community bulletin board.
If a particular resident is being recalcitrant, a ‘Continuing Contravention Notice’ can be issued by the committee as an official warning. This notice must identify the by-law in question and the contravention which occurred, and provide a reasonable period in which the contravention must be remedied. This type of notice is often used for owners bringing in unauthorised pets, or making unauthorised modifications to their lots. Similarly, a ‘Future Contravention Notice’ can be issued where a body corporate believes it is likely a contravention will occur, or will be repeated. Future notices are typically applied for things such as ongoing noise, or parking breaches. These contravention notices are generally the upper limit of a body corporate’s power to enforce a by-law, but this often enough to induce compliance.
However where a matter needs to be escalated further, a body corporate can take the matter to the Magistrates Court. The Court may impose a penalty of up to $2200 if satisfied a person did not comply with a continuing or future contravention notice, and that the body corporate sufficiently identified what the contravention was. Bodies corporate may also apply for dispute resolution to resolve the matter.
Only the Magistrates Court has the power to issue fines to residents who continue to breach by-laws. Some committees in the past believed they have the power to set and issue fines, but this is not the case! If you require assistance in dealing with breaches of by-laws, speak to your SSKB community managers. They can guide you through process in a legally correct and community-wise manner. Further information on enforcement of by-laws can also be found on the Queensland government website.
To avoid the tyranny of the ‘small laws’ — those nasty, micro-managing, nit-picky restrictions that can make a complex feel more like a prison camp than a home – it is important to get the by-laws right. A committee should consider a by-laws review every couple of years to ensure they continue to meet the needs of their community. Next month we’ll be looking at whether your community’s by-laws need a New Year’s overhaul and process for updating them.