BUYING IN A BODY CORPORATE? WHAT BY-LAWS WILL YOU BE SUBJECT TO?
Firstly, what are by-laws?
Body corporates are regulated by both legislation, which impacts all schemes, and by-laws, which are internal rules for each body corporate.
By-laws provide regulation for a number of matters, including:
- The use of shared spaces (e.g. pools and BBQ areas, visitor carparking)
- Keeping of animals
- Noise
- Changes to each lot’s external appearance
- Renovations of lots
There are broadly two types of by-laws:
- General by-laws – these govern what can and cannot be done in the scheme
- Exclusive use by-laws – these grant exclusive use areas to lot owners (e.g. parking spaces or courtyards) and govern how these areas are used and maintained
Where do you find your by-laws?
The by-laws will generally be listed in the community management statement (CMS) for the body corporate.
We order a copy of the CMS as part of our standard searches.
The CMS is registered with the Titles Office and includes other information about the body corporate, including the name, regulation module and lot entitlements.
However, if the by-laws are not documented in the CMS (which can often be the case for older buildings), determining the relevant by-laws can be more complicated.
What by-laws apply to your property?
Scheme created and registered after 13 July 1997
For schemes created and registered after 13 July 1997, the CMS must be registered with the Titles Office. If the CMS does not include any by-laws, the standard by-laws in Schedule 4 of the Body Corporate and Community Management Act 1997 (BCCM Act) will apply.
If the body corporate changes the by-laws, a new CMS must be registered with the Titles Office and all previous CMSs will become obsolete.
Exclusive use can only be granted by way of a by-law included in the CMS. If a scheme is created after 13 July 1997 and a lot is not allocated exclusive use in the CMS, the lot does not have exclusive use.
Scheme created and registered between 3 November 1980 – 13 July 1997
For schemes created and registered between this period, if by-laws are listed in the CMS, these by-laws will apply (unless a new CMS listing the by-laws has since been recorded with the Titles Office).
If by-laws are not listed in the CMS, the standard by-laws in Schedule 3 of the Building Units and Group Titles Act 1980 (BUGTA) will apply plus any changes to the Schedule 3 by-laws that the body corporate has registered with Titles. These changes will be listed on the common property title for the scheme.
Exclusive use can only be granted by way of a by-law that is recorded with Titles. If Titles does not have a record of the exclusive use right being granted for the lot (either in the CMS by-laws or in a Notification of Change of By-Laws), the lot does not have exclusive use rights.
Scheme created before 3 November 1980
For schemes created and registered before this date, if by-laws are listed in the CMS, these by-laws will apply (unless a new CMS listing the by-laws has since been recorded with the Titles Office).
If by-laws are not listed in the CMS, the relevant by-laws will be found in a combination of documents. It will be important to consider in further detail for the specific property, but, effectively, the by-laws will be those in:
- Schedule 3 of BUGTA
- Schedule 2 of the Building Units Title Act 1965 (BUT Act) or Schedule 2 of the Group Titles Act 1973 (GT Act) (depending on which Act the body corporate was registered under); and
- Any amendments that have been recorded with the Titles Office (as found on the common property title for the scheme)
Before 1980, exclusive use rights did not have to be recorded with the Titles Office. As such, to find exclusive use rights, it may be necessary to go through the body corporate records to locate the minutes showing the decision to grant exclusive use. If exclusive use rights existed prior to 1980, these are considered to continue to exist despite a by-law not being currently recorded with the Titles Office (however the BCCM Act does allow for the by-law to be recorded now).
