Recently, the Queensland Government has proposed changes to the legislation which governs the operation of body corporates and community titles schemes throughout Queensland.
The Body Corporate and Community Management and Other Legislation Amendment Bill 2023 (Bill) contains several proposed amendments which will codify a line of recent decisions of the Body Corporate Commissioner – in particular, regarding the contentious issues of pets, towing of vehicles and smoking in community title schemes.
One of the key objectives of the Bill is to “modernise and improve” the operation of body corporate legislation. It is hoped that the proposed changes will bring the legislation into line with the expectations and experiences of body corporates and those living and working within community titles schemes.
Key proposed changes
While the Bill proposes numerous changes to body corporate legislation, the key updates are as follows:
Dealing with second-hand smoke – While the current body corporate legislation places a general obligation on occupiers not to use their lot in a way that causes a nuisance or hazard to other occupiers, the question of whether smoke emanating from a lot was a ‘nuisance’ in contravention of body corporate legislation was the subject of many decisions of the Body Corporate Commissioner. The proposed change will make it clear that where an occupier (or their guest) regularly uses a smoking product on a lot and another person on scheme land is regularly exposed to that smoke, the occupier will have caused a nuisance and contravened the body corporate legislation. Further, the Bill clarifies that bodies corporate are able to implement by-laws which prohibit or restrict smoking on common property or outdoor areas (including balconies or courtyards of lots).
Dealing with animals – Decisions of the Body Corporate Commissioner have established that by-laws which implement ‘blanket bans’ on pets in community title schemes are unreasonable (and cannot be enforced). The Bill seeks to codify these decisions and also set out guidelines regarding the reasonable grounds a body corporate may rely upon to refuse an application by an occupier to keep an animal on scheme land (or the appropriate conditions that may be placed on an animal should an application be accepted).
Towing of vehicles – Bodies corporate may often feel “caught between a rock and a hard place” when it comes to the issue of towing offending vehicles which are parked without authorisation on common property. This issue can be particularly problematic where a vehicle is parked in a way that prevents access to the common property, a lot or utility infrastructure (especially where that vehicle is owned by an owner or occupier of the scheme, which adds another layer of complexity). There is currently no authority under body corporate legislation for a body corporate to tow a vehicle even if that vehicle is parked in contravention of a by-law (or any other law). The Bill seeks to address this issue by allowing bodies corporate to tow vehicles parked illegally or in contravention of a by-law in a timely fashion, without the need to follow the usual ‘contravention notice’ procedure.
Termination of community titles schemes – Currently, a community titles scheme can only be terminated via a resolution without dissent (ie no votes against the resolution) or via a Court order. This poses difficulties where the majority of owners may want to end schemes where the building has become dilapidated or there are other critical issues with the building or scheme or otherwise wish to sell or redevelop the scheme land. The Bill proposes to allow a community titles scheme to be terminated with the support of only 75% of owners provided there is an economic reason for termination, meaning the scheme is not economically viable, or it will not be economically viable within the next five (5) years, to carry out repairs or maintenance to parts of the common property.
Authorisation of alternative insurance – The Bill seeks to change the process for bodies corporate to obtain alternative insurance where a body corporate is unable to insure buildings for their full replacement value. It is proposed that adjudicators will be authorised to make orders allowing alternative insurance arrangements on application by a body corporate provided particular criteria are met. The Bill also includes guidelines in relation to the information an adjudicator will take into account when determining whether such alternative insurance order should be made.
What do these changes mean for bodies corporate?
Nothing – yet. The Bill has not yet passed but will likely be considered by the Parliament in the coming months.
Should the Bill be passed, we recommend that each body corporate conduct a review of their by-laws and operational practices and procedures to ensure they are compatible with the amendments to the legislation. The lower threshold for termination of a community titles scheme may also allow certain bodies corporate who wish to consider termination to revisit that prospect with a view to progressing if the Bill passes.
How we can help
If your body corporate needs advice regarding these proposed changes and their impact on the governance of your scheme, the team at Shand Taylor Lawyers is here to help.
Rod O’Sullivan, Director
(07) 3307 4568
Matthew Shannon, Director
(07) 3307 4506
Patrick Sherlock, Director
(07) 3307 4542
Emma Lewis, Associate
(07) 3307 4546