17 Dec Adjudicators Order – Dealing with By Law Contraventions and Nuisance
Adjudicators Order – Dealing with By Law Contraventions and Nuisance
On a regular basis our office receives calls and emails reporting a breach of by laws by other owners and occupants. These can be varied – from car parking and storage of items on common property to unauthorised pets and noise.
So how does a body corporate deal with these?
In accordance with legislation the body corporate has an obligation to enforce the by laws for the scheme. If the body corporate believes that an owner or occupant is breaching the by laws, it must take steps to make the owner or occupant aware of the breach and provide them with the opportunity to rectify it. This is usually done by sending a letter to the owner or occupant reminding them of the by laws and asking that they take steps to stop breaching the by laws etc.
If the owner or occupant continues to breach the by laws for the scheme section 182 & 183 of the Body Corporate and Community Management Act 1997 (the Act) provides a framework for dealing with by law contraventions including issuing a Continuing Contravention Notice and issuing a Future Contravention Notice. On these Contravention Notices, it provides a timeframe in which the owner or occupant is required to rectify the breach.
The body corporate, once this timeframe has passed and the breach continues, has the ability to then lodge an application with the Office of the Commissioner for Body Corporate and Community Management for a ruling compelling the owner or occupant to cease breaching the by laws.
This is the course of action taken by the applicant of the adjudicator’s order we reviewed this month. The applicant, being the body corporate, claims that another owner in the scheme has, since 2016, been breaching various by laws contained within their Community Management Statement (CMS) and continued to ignore requests to cease.
The breaches carried out by the owner included, but were not limited to, aggressive threatening behaviour & communication towards the caretaker and other occupants, discarding rubbish on the common property, using common property assets and not cleaning same after use and also of placing birdseed on the balcony to attract birds causing disturbance to other owners and occupants.
The adjudicator noted that section 167 of The Act states:
“The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that –
- Causes a nuisance or hazard; or
- Interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
- Interferes unreasonably with the use or enjoyment by a person who is lawfully on the common property
It was noted that not only was the owner breaching the by laws, but was also in breach of this section of The Act.
The adjudicator assigned to the case reviewed all of the documentation from the application and also from the submission made by the respondent subsequently ruled that the owner must comply with the relevant by laws and otherwise generally, cease contravening section 167 of The Act. The respondent has since appealed this ruling through the Queensland Civil and Administrative Tribunal (we do not have this ruling at hand at this stage).
The full order can be read – http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2019/580.html
And more information can be obtained by visiting the Commissioners Office Website – https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/enforcing-by-laws