Three things to know about by-law compliance:
- Resident managers do not enforce by-laws for the body corporate.
- Managers can help educate owners and occupiers about by-laws.
- Infringements should be reported to the Body Corporate manager or committee.
▶️ Watch the 2.5-minute explainer video below
🔊 Listen to the audio version below
"Enforcing" By-Laws
One of the many interesting things with strata is that sometimes we come up with phrases that don't actually exist in the legislation.
The legislation does not refer to ‘breach of by-laws’; it refers to ‘compliance with by-laws’.
But of course, lawyers being lawyers and people being people, we use much more emotive and aggressive terms — enforcement and breach — which indicate there's some degree of sanction coming.
We quite often get management rights clients who are caught in the trap of being given the job by their committee of enforcing by-laws.
Who is responsible for by-law enforcement?
The statutory position is that the only entity that can enforce by-laws and go to the Commissioner's office for enforcement is the committee itself. There is a carve-out for lot owners if the committee does not do what they have to do, but that’s another story.
It is not the resident manager's job to go and serve by-law breach notices on people, to knock on doors at 8 o’clock at night demanding they turn the radio down, or to go and drag people out of the pool if they're in there outside pool hours.
What is a resident manager's role regarding by-laws?
A resident manager should absolutely be reporting breaches of by-laws that they become aware of to their committee. If the occupier of Lot 1 is swimming in the pool at one o’clock in the morning, and the by-law says you need to be out by nine, that's a matter of letting the committee or the body corporate manager know the next morning.
That position might be a bit different in a short stay complex where a guest is doing the swimming. A resident manager might act as an agent for the lot owner concerned and appropriately speak to the guest about breaching the terms of their license to occupy the lot. But if a resident manager does that, they are doing so as a letting agent – not caretaker.
Otherwise, it's up to the committee to go and do what they need to do in relation to enforcing compliance with that by-law.
It's not for the resident manager to do it themselves.
Education over enforcement
That's not to say a resident manager can't be involved in educating people about what by-laws are in place, because quite often people don't know they exist.
A simple example might be someone parking in the visitor car park. They're not a visitor; they're an occupier. Rather than raining hellfire down on them from above, it might be as simple as going and knocking on the door, saying "Excuse me, mate. You might be new here. That's a visitor car park. The committee really doesn't like people who are occupiers parking in the visitor car park, so it's probably best if you find somewhere else to park."
And that would be it.
It's not demanding the person move their car straight away. It's absolutely not towing their car.
Those are issues for the body corporate to deal with.
What you can do
If you're a resident manager, don't get caught in the trap of enforcing by-laws and effectively creating enemies of the people you're living and working with. Leave that for the committee.
As always if you need help, please reach out.
Unless indicated otherwise above, the content in this newsletter relates to buildings regulated by the BCCM Act, and not the BUGT Act.
