An issues paper was recently released by a team engaged by the Queensland Government to review the Body Corporate and Community Management Act 1997 (Qld). It is accessible here.

The deadline for making a submission is fast-approaching (30 January 2015). If you haven’t had the time to read the 65 page issues paper, here is a summary of some of the issues it explores:

Should bodies corporate have the power to tow vehicles?

Any committees that currently tow vehicles owned by occupiers run the risk that they could be ordered to return the vehicle and pay for any loss or damage. The alternative is to take the slow path through the Commissioner’s Office for an adjudicator’s order to address the by-law contravention.

The industry consensus seems to favour the power to tow, but should the power be delegated to a single committee member or the building manager, or should the entire committee have to make the final decision?

Bodies corporate may be allowed to adopt ‘no pets’ and ‘no smoking’ by-laws by resolution without dissent.

That may not change anything in schemes where there are already pets or smokers as they will just vote against the new by-law. However, it may assist new developments to clearly market themselves as pet-free or smoke-free buildings.

There has been significant pressure in the industry over the last few years to remove ‘no pets’ by-laws and replace them with permissive by-laws to fall into line with the current law. It will be interesting to see whether those bodies corporate that refused to change their ‘no pets’ by-law (which are currently not lawful) will also have to pass a resolution without dissent to ensure the blanket ban is effective.

Should committees be able to issue fines for by-law contraventions?

At the moment a maximum penalty of just over $2,000 can only be imposed by the Magistrates Court if a contravention notice is not complied with, but that very rarely happens. Allowing committees to issue fines would encourage greater compliance with the by-laws, but that power comes with risks. Two questions that follow are:

Firstly, if a fine is issued because of a tenant’s behaviour, should the fine be recoverable against the owner? That could bring an end to investor-owners ignoring complaints from committees and building managers about their tenants.

Secondly, if a person who receives a fine successfully overturns it in the Commissioner’s Office, should they be able to recover the costs they incur in bringing that application? That could make committees accountable if they use this power a too ‘robustly’.

Should it be easier to terminate schemes with aging buildings and allow new development in its place?

At the moment a scheme can only be terminated by (a) a resolution without dissent accompanied by an agreement between all stakeholders or (b) an order of the District Court of Queensland.

Both are difficult paths to take. The issues paper explores reducing the threshold for owners to approve termination of schemes that have ageing buildings down to as low as only 75% of voters agreeing to it.

The paper has not given any indication of whether there will be any changes to the lot entitlements regime. We anticipate that controversial topic will be left until after the election on 31 January 2015.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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