As a property lawyer my team and I see a lot of body corporate by-laws every year.
The five most common invalid, unnecessary or unenforceable by-laws that I see are:-
- Animal restrictions – let’s get the elephant in the room out of the way from the start (pardon the pun). By-laws that are prohibitory in nature or are an absolute ban on animals are unlawful. Conditional by-laws are acceptable. The risk for a Body Corporate is a scenario where the only animal by-law is unenforceable and therefore there is no by-law regulating animals in the Scheme.
- House rules – these are completely unlawful if the by-law allows the Committee to set policies and procedures from time to time about the Scheme. Any enforceable rule must be contained in the by-laws and have undergone the proper approval process (by vote) as required by the legislation.
- Covenants – The Building Act 1975 was amended in 2010 to prohibit, among other things, certain by-laws that attempt to ban energy efficient feature or fixtures and requiring certain design elements in buildings such as townhouse and units. Schemes which contain building covenants need to ensure that the covenants don’t ban energy efficient features. The prohibition applies to by-laws made both before and after 2010.
- Noise – By-laws typically prevent an owner or occupier from creating noise that is likely to interfere with the peaceful enjoyment of others. All noise is likely to interfere in some way (i.e. if you can hear the noise it’s interfering). The legislation requires the conduct to ‘unreasonably interfere’. Noise that is likely to interfere cannot be prohibited under the by-laws, only unreasonable interference.
- Damage costs – By-laws often provide for a Body Corporate to recover damages from an owner resulting from a breach of the By-laws. By-laws cannot impose a monetary penalty or payment. These By-laws are unenforceable. The Body Corporate may have recovery rights under the legislation but won’t under the By-laws.