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What by-laws apply

This page provides general information about how to find out what the relevant by-laws are for your scheme.

If you are not sure what by-laws apply to your property, you can seek independent legal advice.

If an adjudication application is lodged about a dispute involving the by-laws, the adjudicator determining the dispute may make a finding on the relevant by-laws.

Finding your by-laws

If your community titles scheme has by-laws listed in the community management statement (CMS) recorded for the scheme, they are the by-laws that apply to the scheme.

The CMS for each scheme is registered with the Titles Registry , who you can contact for a copy of the titles document. They are not available to order online.

How the by-laws are recorded depends on whether the scheme:

  • was created before or after July 1997
  • has lodged a new CMS since 1997.

July 1997 is when the Body Corporate and Community Management Act 1997 (the BCCM Act) started.

If a body corporate changes its by-laws, it must register a new CMS with the Titles Registry.

Furthermore, exclusive use (i.e. where common property is granted to a lot as space for their use only) can only be granted through a by-law that is included in the CMS. That is, it must now be recorded on the CMS to have effect.

However, exclusive use rights have not always required by-laws. So for pre-1980 schemes, read the information below about exclusive use.

Schemes created after July 1997

If your body corporate was created after July 1997, its CMS must be registered with the Titles Registry.

If the CMS does not list any by-laws, the by-laws that apply to your scheme will be the standard by-laws in schedule 4 of the BCCM Act. There are no other circumstances where the by-laws in schedule 4 will apply.

Schemes created before July 1997

If an older scheme has resolved to record a new CMS since 1997, any by-laws listed in the most recently recorded CMS will apply.

However, sometimes the CMS recorded after 1997 does not list the by-laws.

When the BCCM Act started on 13 July 1997, it said that the by-laws for existing schemes would continue to apply unless the body corporate recorded a new CMS listing the by-laws that apply to the scheme.

In July 1997, an interim CMS was recorded by the Titles Registry for each scheme created before then. If the body corporate did not record a new CMS by 13 July 2000, the interim CMS was automatically recorded as a standard CMS for the scheme by the Titles Registry.

A standard CMS is usually only a single page, and the by-laws are not listed in it. It states that the by-laws for the scheme are those in effect as of 13 July 2000. The by-laws in place at that date will depend on when the scheme was created.

So, you will need to look further to find out what by-laws apply if your scheme has a standard CMS.

Schemes created between 1980 and 1997

If your scheme was created and registered between 3 November 1980 and 13 July 1997, and has not recorded a CMS that lists its by-laws, the by-laws that apply to the scheme will be:

and

  • any changes to the schedule 3 by-laws that the body corporate has registered with the Titles Registry.

Each change to the by-laws under BUGTA was required to be separately recorded with the Titles Registry. This means, to find all the by-laws that apply you will need to look for all the different documents changing the by-laws that have been recorded.

Under BUGTA exclusive use by-laws had to be recorded with the Titles Registry to have an effect. They may have been recorded separately or with other changes to the by-laws.

Schemes created before 1980

Before BUGTA, bodies corporate were created and registered under either:

The by-laws that applied were set out in the first and second schedules  of these Acts, unless they were changed by the body corporate.

Changes to the first schedule by-laws had to be recorded with the Titles Registry, but changes to the second schedule by-laws only required a special resolution of the body corporate and did not need to be recorded.

When BUGTA started in November 1980, it said that the by-laws for schemes created under the previous Acts would be:

  • any former by-laws that did not conflict with the BUGTA other than schedule 3
  • any by-laws in schedule 3 of BUGTA that did not conflict with the former by-laws.

This means that if your scheme was created before 3 November 1980, and has not recorded a new CMS listing the by-laws, the following will apply:

  • any by-laws they recorded at the Titles Registry under BUGTA
  • any by-laws they recorded at the Titles Registry as amendments to the first schedule of the BUT or GT Acts that are not incompatible with BUGTA
  • the by-laws from the second schedule of the BUT or GT Act, including any recorded amendments that  are not incompatible with BUGTA
  • any by-laws from schedule 3 of BUGTA that were not amended or removed by the body corporate and did not conflict with any remaining by-laws from the BUT Act or GT Act.

In effect, the by-laws in the first schedule of the BUT Act and GT Act (if unchanged) no longer applied after BUGTA. Also, following an amendment to BUGTA in 1998, any changes to the by-laws in the second schedule of the BUT Act and GT Act needed to be recorded.

Before 1980, exclusive use rights did not have to be recorded with the Titles Registry or included as a by-law. This means exclusive use rights may exist that have not been recorded.

It might be difficult to find evidence of these rights in the CMS or by searching the titles records. The body corporate records may include a copy of the minutes showing the decision to grant exclusive use.

If there was a resolution giving exclusive use rights or special privileges before 1980, the BCCM Act considers that the body corporate has agreed to a by-law giving effect to that resolution. The BCCM Act allows for the by-law to be recorded now (section 341).

What to do now

If your scheme has no by-laws listed in the CMS, the body corporate can choose to make new by-laws and record a new CMS containing them.

The body corporate could decide to record a new CMS that includes:

  • the by-laws contained in schedule 4 of the BCCM Act
  • the by-laws that previously applied
  • new by-laws
  • by-laws that add to or amend the schedule 4 by-laws or the previous by-laws.

A body corporate does not have to update its by-laws if it is satisfied with the older by-laws that apply.

However, it may help current and future owners and occupiers to have all the by-laws that apply listed in one place in the CMS.