As more people choose to live in home units in Queensland, the rules governing home units become increasingly more complex.
A home unit complex is known colloquially as a "body corporate".The correct legal description is a "community titles scheme".
Community titles schemes can be considered as much like a traditional company. They have assets, they control property, they have rules to govern what members can and cannot do, they are open to public scrutiny, they employ people in a host of roles and they can sue and be sued.
A community titles scheme must have a committee. The committee is responsible for the day-to-day management of the scheme. The committee's role is vital to the smooth running of the body corporate.
It is the committee's job to engage tradespeople and other contractors,ensure the common property is kept well maintained, and supervise the rules of the body corporate (which are known as by-laws).
However, to ensure the committee cannot abuse its power, the legislation creates rules that limit the amount the committee can spend without authority from all of the owners voting in a general meeting.
Many disputes and queries in the body corporate context relate to use of the common property. The common property comprises areas such as driveways, lobbies,lifts, stairwells and other communal facilities.
These areas are generally intended for the benefit of all owners, however,there are exceptions! Often parts of common property (for example, car parks)are given to a lot as exclusive use.
The rules that govern exclusive use are very important, as they set out how exclusive use can be created, and who is responsible for maintaining exclusive use areas.
WHAT IS A BODY CORPORATE
A body corporate is a group of units or lots (the correct legal description in Queensland is "lots"), which share common property. Types of bodies corporate are:
High rise units;
Low set blocks of units;
Estates with free standing houses and shared facilities, such as roads,jetties, swimming pools or security gates; and
Each lot is privately owned, and will be set out in the registered plan for the body corporate. The registered plan will also indicate which areas are common property (which is land owned jointly by all owners).
The members of the body corporate are the owners of lots (not tenants) within the body corporate. When you buy a lot in a body corporate, you automatically become a member of the body corporate.
This entitles you to vote at meetings of the body corporate, and also creates an obligation to pay body corporate levies. The levies are intended to cover all of the costs that the body corporate must pay (such as cleaning contracts,maintenance expenses, and other expenses of a capital nature, such as painting).
A body corporate is a statutory corporation (although not governed by the Corporations Law) and can sue and be sued in its own name. Bodies corporate can purchase and sell property, hire employees, engage contractors, and enter into contracts for the supply of goods or services. This means that the body corporate is a separate legal entity, with interests that may differ from that of the owners that make up its membership. Accordingly, disputes can arise, and for this reason there are structures and procedures which are designed to ensure lot owners have a say in the way the body corporate is run.
For example, meetings are held annually of all owners to vote on certain issues, such as setting budgets and electing a committee. The committee takes over the day to day running of the body corporate, but certain issues are still reserved for voting by all owners.
The rules governing the operation of the body corporate are set down in the Act governing bodies corporate (the Body Corporate and Community Management Act 1997), there are also regulation "modules" which apply to different types of buildings and by-laws,which are the individual rules that apply to each body corporate.
It should be noted that bodies corporate cannot run businesses.
WHERE ARE THE RULES?
The rules of the body corporate are primarily contained in three places.
Body Corporate and Community Management Act 1997
This Act is the primary piece of legislation governing bodies corporate. It explains how bodies corporate are established, outlines the various roles of people involved with bodies corporate, outlines the management of bodies corporate, sets out rights and responsibilities of bodies corporate and lot owners, and sets up a scheme for resolving disputes.
An example of how the Act sets up responsibilities can be seen with respect to the responsibility for maintenance - the body corporate is responsible for maintaining common property (as the common property is shared by all owners),and each lot owner is responsible for maintaining their own property.
However, there are exceptions to this basic rule - for example, an internal wall which forms part of an owner's lot would generally be the responsibility of the owner to maintain, unless the wall is actually a load bearing wall which other lots depend upon for support. In that case, the responsibility lies with the body corporate. This is an area of much contention in bodies corporate, as it is complicated, and not always obvious on a visual inspection.
The Act also sets out how other pieces of subordinate legislation and rules interact with it.
Many of the more specific rules are contained in the Regulation Modules,which are subordinate to the Act. The Regulation Modules set out matters such as the constitution of committees, the things committees may decide, the way meetings are conducted, the types of resolutions required for different matters and levels of expenditure, the types of contracts the body corporate may enter into and the property and financial management arrangements.
The Regulation Module is specified on the front page of the Community Management Statement (see below) which is a compulsory document that contains a lot of details pertaining to each body corporate.
Each body corporate must have a document called a Community Management Statement, which among other things, sets out the rules that apply specifically to that body corporate. These rules are known as "by-laws".
The following are examples of generic by-laws which the Body Corporate and Community Management Act 1997 imposes on a body corporate if they haven't chosen to adopt their own specific by-laws:
The owner or occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.
(1) Occupiers must comply with, and must ensure that their invitees comply with, directions given by an authorised representative of the body corporate regarding use of visitor car parking spaces.
(2) The occupier of a lot must not, without the body corporate's written approval:-
(a) park a vehicle, or allow a vehicle to stand; or
(b) permit an invitee to park a vehicle, or allow a vehicle to stand,
on the common property other than as permitted under sub-section (1).
(3) The body corporate may cancel an approval given under sub-section (2) by giving seven (7) days written notice to the occupier.
The occupier of a lot must not obstruct the lawful use of the common property by someone else.
4. Damage to lawns and gardens
(1) The occupier of a lot must not, without the body corporate's written approval:-
(a) damage a lawn, garden, tree, shrub, plant or flower on the common property; or
(b) use a part of the common property as a garden.
(2) An approval under sub-section (1) must state the period for which it is given.
(3) However, the body corporate may cancel the approval by giving 7 days written notice to the occupier.
5. Damage to common property
(1) An occupier of a lot must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.
(2) However, an occupier may install a locking or safety device to protect the lot against intruders, or a screen to prevent entry of animals or insects,if the device or screen is soundly built and is consistent with the colour,style and materials of the building.
(3) The owner of a lot must keep a device installed under sub-section (2) in good order and repair.
6. Behaviour of invitees
An owner or occupier of a lot must take reasonable steps to ensure that any occupier's invitees do not behave in a manner likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.
7. Leaving of rubbish on the common property
The occupier of a lot must not leave rubbish or other materials on the common property in a way or place likely to interfere with the enjoyment of the common property by someone else.
8. Appearance of lot
The occupier of a lot must not, without the body corporate's written approval:-
(1) make a change to the external appearance of the lot;
(2) make a structural alteration to a lot;
(3) hang washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land; or
(4) display a sign, advertisement or similar article if the article is visible from another lot or the common property, or from outside the scheme land.
9. Garbage Disposal
(1) Unless the body corporate provides some other way of garbage disposal,the occupier of a lot must keep a receptacle for garbage in a clean and dry condition and adequately covered on the lot, or on a part of the common property designated by the body corporate for that purpose.
(2) The occupier of a lot must:-
(a) comply with all local government laws about disposal of garbage; and
(b) ensure that the occupier does not, in disposing of garbage, adversely affect the health, hygiene or comfort of the occupiers of other lots.
10. Keeping of animals
(1) Subject to Section 143 of the Body Corporate and Community Management Act 1997 the occupier of a lot must not, without the body corporate's written approval:-
(a) bring or keep an animal on the lot or the common property; or
(b) permit an invitee to bring or keep an animal on the lot or the common property.
(2) An approval under sub-section (1) may be revoked by the body corporate at any time.
Other by-laws may be included, such as rules relating to the use of facilities such as pools, rules relating the behaviour of guests, and a by-law allowing costs incurred in rectifying a breach of by-laws to be recovered from the lot owner.
This Information Outline is provided courtesy of Hall Payne Lawyers who are experienced in this area of law. They are located at Level 9, 344 Queen Street, Brisbane, QLD 4000 or call them on (07) 3221-2044 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.
Hall Payne Lawyers are an established Queensland firm practicing in the areas of employment law (unfair dismissal etc), accident compensation (WorkCover,motor vehicle accident, personal injuries), anti-discrimination &harassment, consumer law, family law, wills & estates, criminal law and conveyancing. Hall Payne Lawyers are a founding member of the Australia-wide PeopleLaw group.