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. 

The solution to the problem

We are redefining the way by-laws are reviewed.

Rather than working from the existing base of (usually) largely incorrect by-laws, we will work with you to build a set of by-laws from the ground up that are specific to your scheme. This starts with a comprehensive information gathering process where we take you through what we need to know and then we produce for you what you need to have. 

The finished product will be 100% lawful and enforceable.  This gives every committee the confidence to rely on the by-laws whilst promoting transparency for owners and occupiers about how the scheme is regulated. 

The other benefit is that this is a far more cost-effective method than the traditional way of reviewing by-laws line by line.

The end result is easier for all to understand as the by-laws are not written in legalese, are created in a logical order (as opposed to 1 through to 40), and are broken up into relevant sections.

Other reading

If you want to read some of Hynes Legal’s previous articles relating to by-laws, they can be found here:

If you would like to receive an obligation free proposal for Hynes Legal’s model by-laws, tailored to reflect the unique requirements of your scheme, please upload a copy of your community management statement (if you have it) as well as completing the form below:

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