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Enforcing body corporate by-laws involves a multifaceted approach with responsibility shared across the body corporate and owner or occupiers.
In this article, we look at the specific process of enforcing by-laws as a body corporate.
Who is responsible for enforcing body corporate by-laws?
While the primary responsibility for enforcing by-laws lies with the Committee on behalf of a body corporate, owners and occupiers also play a role in ensuring compliance.
The approach varies depending on who is enforcing the by-laws.
When the body corporate is enforcing the by-laws
If a body corporate suspects that an owner or occupier is breaching the by-laws, it is often better to start informally. This might involve a conversation or sending a letter explaining the breach. This step is known as self-resolution.
If self-resolution fails, the next step, as outlined in the Body Corporate and Community Management Act 1997, involves issuing a by-law contravention notice to the owner or occupier. This notice serves as the first formal communication regarding the suspected breach of the by-laws.
The decision to issue a by-law contravention notice can be made either by the committee or by the body corporate at a general meeting.
Types of contravention notices
1. Continuing contravention notice (BCCM form 10)
The body corporate can send a letter, or issue a continuing contravention notice (BCCM form 10) to an owner or occupier if it believes they are breaching a by-law, and it is likely to continue.
If, for example, an owner or occupier had altered the outside of their property without body corporate approval, and as such was committing a breach likely to continue. The purpose of this notice would be to request the individual to rectify the issue within a specified timeframe.
The notice must:
- notify the owner or occupier that the body corporate believes they are breaching a by-law
- detail the by-law that the body corporate believes is being breached
- explain how the by-law is being breached
- set a time period for issue to be rectified
- explain if the owner or occupier does not comply, the body corporate can
- make a conciliation application;
- Lodge an adjudication application; or
- Commence proceedings in the Magistrates Court
2. Future contravention notice (BCCM form 11)
The body corporate can send a letter, or issue a future contravention notice (BCCM form 11) to an owner or occupier if it believes they have breached a by-law and it is likely to be repeated.
If, for example, an owner or occupier was continually parking in the visitor carparks. The purpose of this notice would be to request the owner or occupier not to continue the breach.
The notice must:
- notify the owner or occupier that the body corporate believes they are breaching a by-law
- detail the by-law that the body corporate believes is being breached
- explain how the by-law is being breached
- request the owner or occupier does not repeat the breach
- explain if the owner or occupier does not comply the body corporate can
- make a conciliation application;
- Lodge an adjudication application; or
- Commence proceedings in the Magistrates Court
Who receives the contravention notice?
The body corporate must send the contravention notice to the person they believe has breached the by-law.
If the body corporate believes this is an occupier who is not the owner, the contravention notice must name the occupier and not the owner or property manager. It cannot state “the tenant” but must be personally addressed. The body corporate must also provide a copy of the contravention notice to the owner immediately after issuing the breach notice to the occupier.
Urgent by-law issues
In special ‘urgent’ circumstances, applicants can make a dispute resolution application without:
- the body corporate issuing a contravention notice
- the owner or occupier giving the body corporate a notice (BCCM form 1) about the breach
‘Special circumstances’ would apply if the alleged by-law breach is:
- likely to cause injury to people or serious damage to property
- risk to people’s health or safety
- causing a serious nuisance to people
- an emergency for another reason
Either of the following would also need to apply:
- the by-law breach relates to an application for an order to repair damage or reimburse the cost of repairs arising from a breach of the by-laws (under section 281 of the Body Corporate and Community Management Act 1997)
or
- the application is for the interim order of an adjudicator.
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