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Breaching By-law: How specific does the Breach Notice have to be?

When moving into a complex whether as an owner occupier or a tenant, the Body Corporate by-laws are distributed so that the new occupiers are aware of the rules regulating the complex. All occupiers, from long standing owner occupiers to business tenants, have to comply with the by-laws at all times.

The Body Corporate Committee on behalf of the Body Corporate is responsible for upholding the by-laws and has the power to issue Breach Notices to occupiers, in circumstances where it believes a by-law has been or will be breached.

By-law contravention notices

A breach notice should be sent to the occupier in the specific form that complies with the Body Corporate legislation. Reference to the by-laws that have been breached must be made as well as detailed explanation as to the actions that the Committee believes are in contradiction of the by-laws. It is important that the breach notice clearly identifies the specific by-law or by-laws that have been breached, otherwise the breach notice is defective and of no effect.

In Allunga [2019] QBCCMCmr 363, the Adjudicator dismissed an application by the Body Corporate alleging that an owner had failed to comply with breach notices with respect to items and plants stored on the owner’s balcony. The Body Corporate’s argument was that “the by-laws have a general theme of protecting the high standards of the external appearance of the scheme”. This argument was not accepted by the Adjudicator on the basis that breach notices must specify a particular by-law that has been breached and references to ‘the theme’ or ‘the vibe’ of the by-laws are irrelevant.

Bi-laws may include what the exterior of the building looks like thereby impacting on the usage of your balcony.

Reasons for requirement of specific breach notices

There are two fundamental reasons why breach notices must be specific in nature.

Firstly, a breach notice must be specific so that a person who has been served with one knows exactly what they have done wrong so that they may rectify their behaviour. The breach notice must specify the particular by-law or by-laws, as the case may be, so that it is understood by both parties which by-laws have been breached and due to what type of behaviour.

Secondly, each occupier must have the ability to predict what types of behaviour is unacceptable in their complex. The answers to this are in the by-laws, which particularise what occupiers are and are not allowed to do in the complex. If Body Corporates were allowed to enforce the ‘vibe’ of the by-laws, it would be impossible for occupiers to predict whether their behaviour is acceptable. This is because everyone’s interpretation of the ‘vibe’ would differ. When by-laws are enforced in accordance with the actual text of the by-laws it creates certainty to both the occupiers as well as the Body Corporate.

Disclaimer: This article is intended as general information only and should not be relied upon as legal advice. For specific legal advice please contact us here.


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