What are by-laws?
A scheme’s by-laws are like its own mini-constitution. They regulate many things in a body corporate context including the rights of use and rules around common property. They can only be changed by a vote of all lot owners.
Registration does not mean validity
A common misconception is that registration of by-laws means that they are lawful or enforceable. This is not the case. The Titles Office simply registers a document. It does not check the by-laws themselves for validity.
The problem with by-law creation
The Body Corporate and Community Management Act 1997 (Qld) (BCCMA) has a number of restrictions on what by-laws can address. In almost every scheme we have seen, these legislative provisions are not mirrored or acknowledged in the by-laws themselves.
Lawyers are creatures of precedent. No doubt some diligent lawyer came up with a comprehensive set of by-laws many years ago which has been plagiarised repeatedly over time. Unfortunately, as those original by-laws get tested, more and more of them are being shown up as unlawful. That says nothing about committee originated ones that get added to a set of by-laws over time.
What this means is that most bodies corporate have unlawful by-laws. If you don’t know what you are looking for, it can become a bit of a lottery when it comes time to enforce them. If the by-laws are not valid, they are not enforceable, and this is a fact that many diligent committees learn to their detriment well after they try to enforce them.
The other key issue with a scheme’s by-laws is that they usually do not adequately cater for every by-law need of the building. This is because the by-laws have never been reviewed holistically having regard to the individual body corporate’s characteristics.