Recently at the Queensland Law Society Symposium, Frank Higginson, Director at Hynes Legal unpacked some of the most common misconceptions regarding by-laws. His presentation, ‘What can you do with by-laws?’ clarified some of the common misconceptions around the notion that if it’s in the by-laws it must be true! We look at what is fact and what is not – pertinent in our communities as they grow skywards.
A common misconception is that if something is in the by-laws it must be true, however this is not always the case. By-laws cannot control what goes on inside your property, for example, they cannot stipulate what colour your walls are. For property owners in Queensland and in accordance with s 169 of Queensland’s Body Corporate and Community Management Act 1997 (BCCMA), by-laws can only deal with the administration, management and control of common property and body corporate assets and the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme, common property (including utility infrastructure), body corporate assets (including easement areas relevant to common property) and services and amenities supplied by the body corporate.
By-law disputes are often in relation to s 180 BCCMA which provides for the limitations of by-laws. If a by-law is inconsistent with the Act, it is invalid to the extent of the inconsistency. If a lot is being used for residential purposes, the by-laws cannot restrict the type of residential use. A by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealings with a lot. A by-law must not discriminate between the types of occupiers of a property. Other than an exclusive use by-law, one must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme. Alsoa by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for all the scheme.
Higgins also noted the importance of by-laws being enforced correctly.
For property owners and tenants that suspect a neighbour is breaching a by-law, and the by-law is valid, they cannot take it upon themselves to remedy the situation.
‘What can you do with by-laws?’ emphasised community living will always involve some nuisances and compromise is necessary. Section 167 BCCMA provides that occupiers of a lot in a community titles scheme must not use the lot or common property in a way that interferes unreasonably with the use or enjoyment of another lot in the scheme. The key word in this section is ‘unreasonably’. If you are living in a shared apartment building is it unreasonable for there to be kids playing loudly in the courtyard at times? For one of your neighbors to occasionally have a party with loud music on a Saturday night? For someone’s pet dog to bark during a thunderstorm? Generally, the answer would be no and the following example highlights this.
Higgins outlined Norbury v Hogan  QCATA 27 where the Queensland Civil and Administrative Tribunal determined that cigarette smoke drifting into a neighbor’s home was not a nuisance and s 167 BCCMA did not apply. The tribunal considered that there is a principle of ‘give and take, live and let live’ in these situations.
A take away – and reminder – is when dealing with by-laws you should not assume that all by-laws are made in accordance with the law. Most importantly compromise is very important to living in harmony in shared community living.