Making by-laws

By-laws are a set of rules that a body corporate makes to control and manage:

• the common property
• body corporate assets
• services and facilities provided by the body corporate
• the use of lots.

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 (QLD) 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.

Invalid by-laws

A body corporate can only make a by-law on a matter allowed under the Body Corporate and Community Management Act 1997.

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.

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 Body Corporate and Community Management Act 1997 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.