Whilst cafés and restaurants must comply with far more complex and far-reaching regulatory frameworks than the Body Corporate and Community Management Act and associated Regulations, the hospitality businesses in your Complex are still lot occupiers as any other tenant. This means that cafés and restaurants alike have to comply with not only the Body Corporate and Community Management legislation but also with the by-laws of the Complex that they operate in.
Compliance with Body Corporate legislation and by-laws
Cafés and restaurants that are located within Body Corporate complexes are regarded as lot occupiers in the same manner as any other owner or occupier, whether of a residential or commercial lot. The most common disputes in Body Corporates with respect to hospitality businesses relate to noise and other nuisance complaints as well as to the use of common property.
Noise and other nuisance
Most Body Corporate by-laws will have provisions relating to the production of excessive noise and other nuisances such as noise from excessive use of vehicles in and around the complex and well as nuisance from alcohol use and smoking. Hospitality business must comply with any Body Corporate by-laws relating to noise and nuisance, and a Body Corporate Committee may enforce any such by-laws and issue the commercial tenants with by-law contradiction notices.
Furthermore, as any other tenant, hospitality business must comply with the Body Corporate and Community Management Act and the relevant Regulation Modules. Under s167 of the Act, the same criteria applies to cafés and restaurants as applies to residential tenants in terms of nuisance. Hospitality businesses must not use, and more importantly permit customers to use, their lot in a way that would unreasonably interfere with the use and enjoyment of other lots in the Complex nor to permit customers to use common property in a way that would unreasonably interfere with another lot owner or occupier.
Use of Common Property
The use of common property in a way that creates nuisance also ties into the other issue complexes are experiencing with hospitality businesses. Commercial lots may have common property annexed to their lot by way of exclusive use areas, however, again these business must comply with relevant by-laws that provide for the exclusive use of these areas.
Where a cafés or restaurant has access to common property by way of exclusive use area, the confines of the establishment must not extend beyond the exclusive use area. There are of course exceptions, such as lease arrangements with the Body Corporate. However, customers going in and out of the establishment should not use common property in a way that unreasonably interferes with other occupiers. This extends to access to the commercial lot, use of designated smoking areas and customer parking.
Read more about noise and nuisance in Body Corporate buildings here.
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.