Can a resident manager enforce by-laws?
One of the most annoying parts of every resident manager’s life must be that knock on the door after hours with a whinge from an owner or a tenant about someone parking in ‘their’ spot.
Firstly, it is very well accepted that a body corporate cannot delegate the power to enforce by-laws. Taking action for breaches of by-laws is something that only a body corporate can do. It cannot farm that right out to third parties – including resident managers.
Most caretaking agreements include a specific reference to the resident manager’s role when it comes to by-laws. The more modern caretaking agreements have a clause in which the resident manager must ‘monitor compliance with the by-laws and report to the committee any serious or persistent breaches of them’.
Older caretaking agreements usually have a clause along the lines of ‘police the observance of the by-laws of the body corporate’ with a corresponding right to ‘take action to the same extent that the body corporate itself can do so’.
Secondly, the responsibility to enforce by-laws will usually be a point of conflict with your committee, especially if your caretaking agreement contains an outdated clause to enforce the by-laws. These arguments are often fuelled by a committee’s inability to appreciate that enforcement of by-laws is limited to issuing contravention notices, then taking appropriate legal action.
A committee does not have the power to take the law into its own hands and physically prevent a resident from moving furniture in a lift that is not padded, or directing the building manager to do that. While at first glance, it seems appropriate to take immediate action to stop a by-law breach, the limited way to enforce by-laws recognises that taking this type of confronting action might only cause greater conflict and disharmony in a community setting.
By-law enforcement has been litigated. As an example of the types of decisions that can be produced, please click here to read our previous newsletter on this topic.
If you make sure that your template includes the information here the body corporate will be able to do what it has to.
Don’t be tempted to take the law into your own hands.
Of course, we can help with any of these issues if needed!