Making by-laws

A body corporate can choose to adopt the standard by-laws that are set out in Schedule 4 of the Body Corporate and Community Management Act 1997 (BCCM Act) or it can make its own.

The by-laws for a body corporate are in the community management statement which is recorded for each community titles scheme.

The body corporate committee may want to give copies of the by-laws to owners and occupiers, so they know their rights and responsibilities.

Making and changing by-laws

A body corporate can make new by-laws, or change its existing ones at any time.

To do this a body corporate must pass a motion to record a new community management statement that includes changes to the by-laws.

Usually a motion agreeing to change the by-laws must be agreed to by a special resolution at a general meeting. If the change includes a new or amended exclusive use by-law, a resolution without dissent is needed.

The body corporate must register its new community management statement with Titles Queensland. It has 3 months, from the date the motion to change the by-laws is passed, to do this.

A by-law starts on the day the registrar records the new community management statement that contains the by-law (unless the by-law sets a later date).

Recording by-laws with Titles Queensland does not automatically make them valid.

Smoking by-laws

The body corporate can make by-laws that prohibit or restrict a person from smoking or inhaling some or all smoking products.

A smoking by-law can only apply to all or part of:

• common property that is not under an exclusive use by-law
• body corporate assets that are not under an exclusive use by-law
• outdoor areas including
  • a lot
  • common property under an exclusive use by-law
  • body corporate assets under an exclusive use by-law.

The definition of outdoor area includes any of the following areas:

• balcony
• courtyard
• patio
• verandah.

Invalid by-laws

A body corporate can only make a by-law on a matter allowed under the BCCM Act.

By-laws cannot:

• be inconsistent with the Act or any other legislation
• stop or restrict a sale, lease, transfer, mortgage or other dealing with a lot
• discriminate between types of occupiers
• be unreasonable, when the interests of all owners and occupiers in the scheme and the use of the common property are considered
• restrict the type of residential use of a residential lot
• impose a monetary liability on an owner or occupier (except in an exclusive use by-law)
• stop an owner or occupier from installing solar hot water or solar power on their lot because it affects the look of the building
• stop a person with a disability from having a guide, hearing or assistance dog on the scheme
• restrict or prohibit smoking in an enclosed part of the lot.

If a by-law does not comply with the legislation, it may be invalid.

If an adjudicator decides that a by-law is invalid, they may make the body corporate record a new community management statement—removing or amending the invalid by-law.

However a body corporate’s recorded by-laws apply unless and until an adjudicator decides a by-law is invalid.

Examples of invalid by-laws

Not consistent with the Act

A by-law would be inconsistent with the BCCM Act if it said that the body corporate did not have to hold annual general meetings.

Discriminates between types of occupiers

A by-law that only allows owners and not tenants to use the common property pool, may be discriminating between different types of occupiers.

Monetary liability

A body corporate could not make a by-law that made an owner or occupier pay a bond before moving in, because it would be imposing a monetary liability.

Smoking

A body corporate could not make a by-law that would restrict or prohibit smoking inside the enclosed part of a lot because it would be inconsistent with the BCCM Act.