If you own a lot or are part of a committee in a scheme frequently used for holiday letting, as Schoolies begins this weekend you should have already started thinking about what impact Schoolies might have on you and your property.
For bodies corporate, onsite managers and lot owners, Schoolies can produce a range of issues and questions.
With the 2018 Schoolies season beginning this weekend, it is timely to revisit the discussion about behaviour management in schemes providing accommodation to the annual influx of school leavers.
I will address a number of body corporate specific matters in this article and have also included information from the Office of Fair Trading about Schoolies. For more information about the Schoolies event, please visit www.schoolies.qld.gov.au.
Schoolies & Access to balconies
In focusing attention on how to prevent tragic accidents, as well as the interference of the use and enjoyment of other lots that may not be occupied by Schoolies, it is important to examine the scope for body corporate action, including whether it is possible to restrict access to balconies.
Under the Body Corporate and Community Management Act 1997 (the Act) a body corporate has control over common property.
However, it cannot unilaterally take action such as locking doors to restrict access to areas within a lot.
A body corporate may instead consider information or education which would be directed at all occupiers (including owners), about safe use and enjoyment of lots, including balconies.
If a body corporate has concerns about the safety of a particular balcony attached to a lot, it should start investigating those concerns sooner rather than later.
A good place to start would be the body corporate raising its concerns directly with the owner of the lot on which the balcony is situated.
The Act contains provisions for lot owners and their responsibilities in relation to the maintenance of a lot. There may also be scope for a body corporate to take action against an owner if they do not adequately fulfil these responsibilities.
By-laws and scheme management
The by-laws for a community titles scheme provide the mechanism under the Act for a body corporate to control and manage the scheme property.
The registered by-laws for a scheme are found in the Community Management Statement (CMS).
A body corporate may make ‘house rules’ as a guide for the use of common property and amenities such as pools and tennis courts.
While these might be useful in encouraging a standard of behaviour, house rules are not enforceable unless they are registered as by-laws in the CMS. By-laws do not take effect (in other words, are not enforceable) until the CMS is registered with the Titles Office.
The Act places some limits on the scope of by-laws and one of those limits is that a by-law may not discriminate between types of occupiers.
This means, for example, that a body corporate cannot prevent a ‘Schoolie’ from using parts of common property that other occupiers are entitled to use and for which there is no exclusive use by-law.
Furthermore, a by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.
This means, for example, that a body corporate cannot force an owner to include a condition in a tenancy agreement precluding the use of balconies.
A by-law also cannot impose a monetary penalty on an owner of a lot.
In practice this would mean that a by-law which purports to levy an extra charge on a lot owner who lets their lot out to a Schoolie, would likely be found to be an invalid by-law.
Bodies corporate are nonetheless responsible for enforcing the registered by-laws.
A body corporate may give a contravention notice to an owner or occupier where it reasonably believes that a person has contravened a by-law, and where, given the circumstances, it is likely that the contravention will continue, or be repeated.
The purpose of a contravention notice is to require the person to remedy the contravention.
There is no provision in the Act for a body corporate to delegate the enforcement powers to an onsite manager, although they may report alleged contraventions to the body corporate through the completion of a Form 1 notice (available at www.qld.gov.au/bodycorporate).
None of this information prevents a body corporate, its committee members or a caretaking service contractor from simply communicating with occupiers about by-laws, whether by posting notices (e.g., on a noticeboard, in mailboxes) or simply discussing them.
I encourage bodies corporate to have these types of discussions (assuming it is appropriate and safe to do so) so that there is no confusion or ambiguity.
Schoolies & Entry to a lot
Under section 163 of the Act, a body corporate, or a person authorised by the body corporate, may enter a lot, only in order to perform work or find out whether work is necessary. The examples cited for section 163 do not extend to general by-law matters, such as checking the use of balconies.
A body corporate cannot seek to enter a lot merely to see whether the
by-laws are being complied with. In other words, there is no capacity for a caretaking service contractor to enter a lot to “check up on things”.
There is a provision under the Act for a body corporate to enter a lot under emergency circumstances. The nature of an “emergency” is not defined and it is important to remember that police, fire or ambulance services might actually be the first port of call for an “emergency”, depending on the circumstances.
Once the Schoolies season is finished, there may be common property repairs or maintenance issues for the body corporate to address. A lot owner may also need to address these issues and occasionally a dispute may arise between a lot owner and the body corporate over who has responsibility for the repair or maintenance.
It is not uncommon for my Office to receive questions about such disputes, which is why we offer a dispute resolution service. In the first instance, it is a legislative requirement for a party to have made all reasonable attempts to resolve the dispute themselves. Again, this may be as simple as discussing the issue or may require writing to the committee to request an action or putting up a motion to a general meeting.
It might also be the case that after Schoolies, the body corporate comes to realise that some of its operations (e.g., its by-laws and its enforcement of the by-laws) need some review and revision. This is nothing to be concerned about and some issues raised throughout the Schoolies season may be an opportunity for the body corporate and property owners to better manage similar issues in the future.
For further information about the enforcement of by-laws, or for general queries about body corporate legislation, please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.