First published in the LookUpStrata Queensland Strata Magazine, November 2023
A body corporate committee must enforce a by-law on its books, even when the committee believes doing so would be unreasonable, a recent finding by the Office of the Commissioner for Body Corporate and Community Management has confirmed.
The adjudicator’s order [Abian Botanic Gardens [2023] QBCCMCmr 385] highlights the need for committees to be vigilant about the quality of their by-laws, or risk potentially expensive and lengthy legal proceedings.
This is particularly the case with legacy by-laws from developers, which may consist of boilerplate provisions that do not reflect the day-to-day reality of life in a particular scheme.
The Abian Botanic Gardens case involved a lot owner asking the body corporate to enforce an existing by-law about the acoustics of floor coverings.
The owner of the lot one floor above had applied to the committee to replace the carpet in their main bedroom with tiles to match the rest of their unit. The committee granted approval with conditions, including that the installation complied with the scheme by-laws.
The relevant by-law dated from the building’s original developers, Sunland, and was vague about the specific acoustic rating that was acceptable, stating: “Any approval for hard flooring is conditional upon the Owner or Occupier demonstrating that the installed flooring will achieve an acoustic rating acceptable for a five star apartment building (as published by the Association of Australian Acoustical Consultants).”
There was disagreement about whether a five-star apartment building, as described in the by-law, required a five-star acoustic rating as defined by the Association of Australian Acoustical Consultants (AAAC).
The adjudicator found that since no alternative definition was offered by the committee, the AAAC rating was to be applied.
A subsequent acoustic engineer’s report found “no travertine floors installed by Sunland and its flooring contractor throughout the development achieve anywhere near the AAAC rating of 5 stars as advocated by the Applicant.”
The committee was concerned that applying the by-law in isolation would be “unreasonable, oppressive, gravely unfair, and very likely discriminatory”, and that requiring the lot owner to remove the hard flooring would impose a penalty of at least twice the cost of installation.
However, the adjudicator found that regardless of any discomfort the committee members may have with the by-law, they have a duty to enforce it.
The adjudicator stated: “The committee cannot withhold enforcement of a by-law until the body corporate adopts something more favourable. The committee must enforce the by-law as registered, unless the by-law is for some reason unlawful…Given that the by-law is not unlawful, there is no reason for it not to be enforced.”
The committee had also suggested the disputing owners resolve the issue between themselves with noise mitigation strategies, such as rugs and felt pads on chairs.
The adjudicator stated: “While this seems to be a practical solution, the applicant has not accepted it and says it is the body corporate’s duty to enforce the by-laws and the protections which they offer to lot owners. That is correct. While the committee may prefer a more conciliatory approach, this does not displace its legislative duty to enforce the by-laws applicable to the scheme.”
From a legal perspective, bodies corporate should regularly check whether their by-laws remain fit-for-purpose. Hynes Legal offers a free by-law assessment service.
