A body corporate can have many things in its by-laws, but the content is limited to the regulation of the use of lots and common property in the scheme. These generally relate to the management of common property and body corporate assets, and other conditions and regulations about the use and enjoyment of lots and common property. However, there are some exceptions to these. Section 180 of the BCCM Act sets out the limitations for by-laws.
If a by-law is inconsistent with any legislation, then the by-law is invalid. An example is something that would contravene the Building Act 1975 (Qld), or giving exclusive use over common property to a body corporate manager. Exclusive use can be given to an owner, but it is not possible to give exclusive use to a body corporate manager, so any such by-law to that effect would be invalid. However, the by-law can still regulate the keeping of animals.
If a lot can lawfully be used for residential purposes, then the by-laws cannot restrict the type of residential use. For example, if a lot can lawfully be used for short-term letting (including AirBNB), then a by-law cannot restrict that use.
The sale of and dealing with lots absolutely cannot be restricted by by-laws. A lot owner is free to sell, transfer, or mortgage their lot or do anything else with the title to their lot. An example given is restricting sales to people over a certain age, or preventing mortgages. These by-laws would be invalid.
A by-law also cannot discriminate between types of occupiers. An example given is preventing a tenant from using a pool on the common property. This would be invalid. This is because the body corporate must administer the common property for the benefit of all lot owners and occupiers.
A by-law cannot impose any monetary liability on an owner or occupier. Many by-laws we see say that the body corporate can recover costs if levies are not paid. This is invalid – it’s a right conferred by the legislation, so it doesn’t need to be a by-law.
Finally, a by-law must not be oppressive or unreasonable. An example of this may be restricting use of the pool between 5pm and 7pm. On the other hand, it may be reasonable to restrict access to a rooftop courtyard in order to comply with COVID-safe regulations and health orders.
By-laws must be reasonable and should work to regulate the scheme in a way that benefits all lot owners. By-laws cannot be used to punish or restrict people from living freely if they are not harming anyone else in doing so.
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.