By-Laws – Tracsafe

December 2022 – Short term letting

trkwpbcm — Wed, 07 Dec 2022 14:25:55 +0000

Many schemes in South East Queensland have had issues with lot owners leasing their lots using AirBNB or other similar service providers.

The BCCMA prohibits by-laws that restrict the leasing of units or restrict the type of residential use that can be made of the unit. By-laws seeking to prohibit the short term letting of units are therefore invalid. Whilst other legislation (Planning Act 2016) may mandate no short-term accommodation on your scheme, a by-law to directly enforce the correct usage has been found to be invalid on multiple occasions.

As part of the development approval of a scheme, the permitted use of scheme land will have been determined by the applicable local council with regard to their specific local planning code. For example, in Sunshine Coast Council, a scheme may be approved as ‘Multiple dwelling’ or ‘Short term accommodation’. Short term accommodation is defined in the Sunshine Coast Planning Scheme 2014 as ‘Premises used to provide short-term accommodation for tourists or travellers for a temporary period of time (typically not exceeding three consecutive months) and may be self-contained’.

For a fee, a local council will supply a letter that identifies the usage permitted by your scheme. If the reply identifies that short-term accommodation is not permitted on your scheme, then there is a pathway for the Committee to enforce. If short-term accommodation is permitted, the pathway is limited to investigating with local council whether a Material Change of Use of the development could be contemplated.

We have worked with UOAQ (Unit Owners Association Qld) and their legal experts to craft a by-law that we consider may not fall foul of the Body Corporate police.

1. All owners acknowledge that ‘short term accommodation’ is not a permitted use of lots within this scheme’s development approval (as identified and as such term is understood in the attachment marked ‘XX’), and that the body corporate and all owners must comply with all applicable laws and regulations, at all times.
2. If the committee becomes aware that a lot is being used for ‘short term accommodation’, the committee may, by resolution, carry out any or all of the following actions:
a) advise the relevant owner of the lot that ‘short term accommodation’ is not a permitted use of a lot within this scheme’s development approval (as identified and as such term is understood in the attachment marked ‘XX’) and demand an immediate cessation of the use of the lot in such manner;
b) report the usage of the lot to the XYZ Council requesting enforcement action;
c) issue a notice of breach of this bylaw to the relevant lot owner;
d) obtain necessary body corporate approvals to commence (or defend against) proceedings in a court, tribunal or forum of competent jurisdiction, including (without limitation) the Queensland Planning and Environment Court and/or the Magistrates Court in relation to the enforcement of the provisions of this by-law and/or any other applicable law and/or regulation.

January 2019 – Prospective lot purchaser

trkwpbcm — Sun, 13 Jan 2019 20:58:19 +0000

We occasionally get one of the questions listed below from a prospective lot purchaser. Recently, a client using our bookkeeping service received these questions. In small schemes, committees can struggle with an answer particularly when the lot owner selling is well regarded by the committee and the committee wants to be helpful. As always, the committee needs to make decisions that are in the best interest of the scheme.

Will my pet be allowed on the property?
Will the body corporate permit my home business?

The answer that we recommend that the committee make is –

Owners and occupiers are required to conform to council regulations. Most councils have laws in regard to pet and business permits. Additionally, owners and occupiers of our scheme are obligated to abide by the scheme by-laws that are set out in the scheme’s community management statement. The body corporate does not preclude enforcing those by-laws or making any necessary change to those by-laws to ensure the peaceful enjoyment of the scheme by all lot owners.

Egged

trkwpbcm — Thu, 13 Jul 2017 05:30:24 +0000

Recently, a client in a building format plan found her townhouse egged.  Missiles had also been directed towards a neighbouring townhouse in the Body Corporate.  Her townhouse is surrounded by an exclusive use allocation, apart from an adjoining wall to another townhouse in the Body Corporate.  This messy event led the impacted lot owners and the Committee to question whether the cleaning, including the cost of cleaning, is a Body Corporate responsibility given that egging is known to quickly deteriorate painted surfaces.
According to the small schemes module regulation, s107 – Conditions and obligations under exclusive use by-law:
(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.
(3) However, if the lot was created under a building format plan of subdivision, in the absence of other specific provision in the by-law, the owner of the lot is not responsible for …
(b) maintaining in a structurally sound condition any of the following elements of scheme land that are part of a structure that is on the part of the common property to which the by-law applies and is not constructed by or for the lot owner—
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including load-bearing walls.
The external cladding, which in this case was not constructed by or for the lot owner, are an essential supporting framework and are the structural maintenance responsibility of the Body Corporate as the by-law did not specify otherwise.  The potential for paint deterioration from the egging could be a vector for structural degradation of the framework.  If this is true, then perhaps the Body Corporate should bear the cost of clean-up.  However, if the egg happened to splatter against a window in the same wall, cleaning would be a lot owner responsibility, as the window is not an essential structural element.  However, does the external cladding actually form part of the exclusive use area?
Another consideration is that the townhouse has two levels.  The exclusive use area on this scheme has only been defined with respect to the structures on the ground level and this only begins at the edge of a patio on the street facing side.  The wall on the upper level facing the street is recessed from the patio and therefore should be classified as common property but not classified as exclusive use.  If the impact was on this wall, then the responsibility rests entirely with the Body Corporate.
Lastly, exclusive use sketches typically have an annotation such as – exclusive use boundaries defined by structural features are external face of wall … .  As such, the walls are boundaries and could be construed as not forming part of the exclusive use proper but remain unallocated common property.  There are clear adjudications that identify that doors and windows in such walls are a lot owner’s maintenance responsibility because they exist only for the benefit of the owner –
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QBCCMCmr/2007/609.
We think that the boundary walls, excluding the doors and windows, remain unallocated common property unless specified explicitly as part of the exclusive use area.  However, we have been unable to find any adjudication with regard to the wall as just described.  If you know the answer for sure, please let us know.
In summary, it can be far from trivial when examining maintenance obligations on schemes with Building Format plan of survey.

Schemes with mixed survey plan formats

trkwpbcm — Sun, 04 Jun 2017 19:11:33 +0000

We uncovered a tangled web this month. A scheme of townhouses had been developed over an extended period of time. The scheme has a private road and for all intensive purposes all the townhouses seemed similar with no lot fencing but with landscaped grounds surrounding each building on the scheme land. The scheme was not a layered scheme.

The first townhouses were originally developed in the 1990s using a Standard Format Plan of survey. The surveyor had defined a footprint for each lot following the contour of each townhouse with just a slight increase in dimension so that the townhouse footprint sat within the survey plan lot footprint. The Community Management Statement included an ordinary by-law requiring the lot owners to maintain the exterior of their townhouse in good condition. The by-law was a little superfluous since the Act already imposes that condition on lot owners to maintain their lot in good condition. At the inception of the scheme, each townhouse was located within their respective lot.

Subsequent townhouses were developed in the following decade. Times had changed and surveyors now commonly use a Building Format Plan of survey in new schemes. They used a Building Format Plan of survey for the new townhouses. In this arrangement, the townhouse structure was now common property and each lot was defined by the walls and ceilings within each townhouse. So far, so good.

However, the by-law requiring the lot owner to maintain the exterior of their lot in good condition was left unchanged. The by-law was invalid for these new townhouses. The exterior of the lot (for the new townhouses) was common property and only the Body Corporate has that maintenance responsibility unless the by-law was an exclusive use bylaw (which it was not).

The bad news of the misunderstanding was that the Body Corporate had not been planning and saving in their sinking fund for the painting and other maintenance on the second set of townhouses for which they were responsible. Oops – good thing we were there to help.

Smoking

trkwpbcm — Tue, 26 Jul 2016 03:53:34 +0000

A Body Coporate that we manage in Taringa has recently raised the issue of smoking. This is a common issue which frequently arises in our managed schemes; what measure of control does the Body Corporate have over smoking? While by-laws regulating smoking in Queensland community titles schemes may be passed,
they are unable to prohibit the activity altogether. As set out in the 1997 Body Corporate Community Management Act, a Body Coporate can pass a smoking nuisance by-law which only permits smoking on common property as long as it does not present a hazard or unreasonably interferes with enjoyment of other lot occupiers. Additionally, the Tobacco and Other Smoking Products Act 1998 forbids smoking in enclosed common areas and the Body Corporate can pass a by-law to reinforce this.

While the Body Corporate does have some ability to regulate smoking, it is important to remember that a Body Corporate may only reasonably regulate smoking in common areas, and they cannot restrict smoking unreasonably. In turn the smoker must take care their smoking does not unreasonably interfere
with the enjoyment of others.

Visitor car parking

trkwpbcm — Tue, 26 Apr 2016 04:02:15 +0000

One of our clients is having problems with a lot owner parking on the common property. Most by-laws permit such parking subject to permission (with a stated end date) being given by the Body Corporate upon the applicant writing to the Committee with a valid reason. The Committee are required to consider the application and make reasonable decisions.

However, it is important to distinguish between visitor parking allocations and other parking areas on the common property because different by-laws usually impact. The by-laws usually give no discretion for parking by lot owners or tenants on the commmon property in areas allocated to visitor parking.

In the case of our client, this distinction had not been recognised and there were no car parking signs in place on the common property. Reference to the local council development approval conditions may
be required. The records may need to be requested from council if not readily available. In the case of the client, it was stated that two visitor car spaces were a condition of development approval and since the common property had enough space for just two car parks, it was clear that the car spaces were for visitor parking. The final step was to inform all lot owners and tenants that the car spaces were visitor car spaces and to have signs made to indicate this on the property. Once everyone is
informed, and if the parking by-law continue to be broken, then a contravention notice can be issued.

Read a typical BCCM Adjudication case outcome where the adjudicator identified this very same issue.