Body Corporate Systems Making sense of the law about bylaws 1 September 2012
Today s presentation What is a by-law? Pets, parking and smoking Q & A
What can be in by-laws Rules relating to:- the administration, management and control of common property and body corporate assets; regulation of, including conditions applying to, the use and enjoyment of (i) (ii) (iii) (iv) lots included in the scheme; and common property, including utility infrastructure; and body corporate assets, including easement areas relevant to common property; and services and amenities supplied by the body corporate;
What cannot be in by-laws Nothing inconsistent with the Act. Can not restrict the type of residential use (short term v long term use). Can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot (mortgages / leases). Must not discriminate between types of occupiers (tenants / owners). Must not impose a monetary liability on the owner or occupier. A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme (the catch all)
Enforcing the by-laws Who is responsible for this? Only binding on owners and occupiers House rules are not enforceable No unilateral power to issue contravention notices Focus on objective evidence Must act reasonably in enforcing by-laws
Pets Prohibitory v regulatory The goldfish test Is there any reasonable basis to refuse permission? BUGTA schemes Reasonable and relevant conditions Enforcing breaches of conditions
Parking It all starts with the development application Visitor car parking Can you tow vehicles belonging to owners / occupiers? Can you tow vehicles belonging to third parties? The future
Smoking Whether it causes a nuisance or interferes unreasonably Highest authority found against smoking being an unreasonable interference: need for objective evidence Within a lot, on a balcony or on the common property Is it reasonable to make a by-law banning smoking on any of these areas?
River City Apartments v McGarvey Appeal to QCAT against adjudicator s order. Important findings: The requirement of an adjudicator to investigate the application is discharged by calling for submissions Adjudicator not required to take proactive steps Bound by the conduct of the party s case can t raise new arguments or evidence on appeal Moves from the adversarial v inquisitorial balance found in Grut-Mackay v Cherwood Lodge: the procedure of adjudication established under the Act does not appear to be an adversarial one; rather it is an inquisitorial one. The obligation of the adjudicator is to investigate: s 269(1).That involves a proactive approach to the dispute and the factual basis for it, rather than merely a reactive response.
River City Apartments v McGarvey cont d In River City appeal, a new legal argument that would have probably shown an error of law was not allowed to be raised Principle in Grut-Mackay has been read-down Puts onus on parties to make their best case even if they are not sophisticated
Putting it in perspective A District Court judge once described the Accommodation Module as being 'as incomprehensible as it is over-prescriptive' River City isn t very encouraging for selfrepresented litigants If the outcome is important, get legal advice / representation early
Questions? Contact Frank Higginson / Jason Carlson Hynes Lawyers Phone: 07 3828 5894 or 07 3828 5821 Email: frank.higginson@hyneslawyers.com.au jason.carlson@hyneslawyers.com.au www.hyneslawyers.com.au