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In a recent “Ask the Expert” question, Strata Operations Manager Matthew Savage answers Russell’s query advising him on the body corporate committee’s obligations to seek the services of a solicitor and the approximate costs involved in commencing proceedings against a tenant in the Magistrate’s Court for the enforcement of the adjudication order.
If you have any body corporate questions that you’d like answered, you can ask them here.
Informal steps to address a bylaw breach
The first step in addressing a by-law breach is to informally raise the issue with the tenant or owner. In most cases, this involves sending a letter explaining the breach and requesting that it be rectified. If the issue persists, further letters may be sent, or a breach notice may be issued.
For example, suppose a tenant has a dog that is barking excessively while the owners are away. In that case, the body corporate committee may send a letter to the tenant, notifying them that their approval for the pet is being rescinded due to the ongoing barking. If the tenant does not take steps to address the barking, they may be issued a breach notice.
Conciliation and adjudication
If informal steps are unsuccessful in rectifying the by-law breach, the next step is to seek the assistance of the conciliation and adjudication office. The Office of the Commissioner for Body Corporate and Community Management in Queensland provides this service, which is designed to resolve most by-law issues in strata.
Conciliation is a process where the parties come together to discuss the issue and come up with a mutually agreeable compromise. These agreements are non-binding, but they typically solve most problems. If conciliation is unsuccessful, the next step is adjudication.
Adjudication is a process where an adjudicator makes an order, which is binding. If a tenant continues to breach the adjudication order, it becomes a breach of a court order or tribunal order and can lead to Magistrates Court action.
Magistrates court action
If the tenant continues to breach the adjudication order, the body corporate committee may need to commence Magistrates Court action. This is a significant process that should only be undertaken after seeking legal advice. The body corporate committee is not required to engage a solicitor for Magistrates Court action, but it is significantly more difficult to self-represent. It is advisable to have someone with experience in that type of work or a solicitor on the committee who can give you the prospects of success and what the costs are likely to be.
It is important to note that going to the Magistrates Court means leaving the body corporate process behind and entering a general litigation process. This process requires a full understanding of court procedure, which can be difficult to navigate. The Magistrates Court will not hold your hand through the process like the way the Commissioner’s Office can do.
The cost of Magistrates Court action can vary, but it is generally not a cheap exercise. It would be several thousand dollars to start with to get to Magistrates Court. However, it is uncommon because it happens less than every couple of years across most portfolios. Most cases are resolved at the conciliation or adjudication stage, or the tenant moves out before the process can reach the Magistrates Court stage.
How your body corporate manager can help
Enforcing by-laws is an essential process in maintaining harmony in a strata community. It starts informally, then progresses to a notice of contravention of the by-laws or by-law breach notice, conciliation, and adjudication, and finally, Magistrates Court action. Seeking legal advice before commencing Magistrates Court action is essential. While the body corporate committee is not required to engage a solicitor for Magistrates Court action, it is advisable to do so unless the committee has someone experienced in that type of work or a lawyer or solicitor on the committee.
You should always make sure to touch base with your body corporate manager for any assistance so that the correct processes are always being followed and to ensure the best outcome for everyone involved.
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