A Body Corporate cannot impose monetary liabilities on an owner of occupierSUMMARY OF ADJUDICATION ORDER: Chevron Renaissance [2021] QBCCMCmr 208
In this recent adjudication order, the Commissioner’s office maintained the position that by-laws cannot impose monetary liabilities on owners and occupiers and that such by-laws are invalid by law. The parties include a Lot Owner as the Applicant and the Body Corporate for Chevron Renaissance CTS 30946 as the Respondent.
This matter arose when the Body Corporate forwarded an invoice for the repair of a door to the Owner for payment following Queensland Police damaging the Lot’s door when attending as part of a search warrant. The Lot Owner has leased their Lot to a tenant (Occupier) who failed to open the door to the Police, so the Police used justified measures to cause the door to the Lot to open, unfortunately damaging the door in the process though. As the door is classified as common property, the Body Corporate is liable to maintain and repair the door under the Act.

 

The Body Corporate in this matter has two by-laws included in its CMS that purport to impose monetary liabilities on owners and occupiers who cause damage to common property or breach a provision of the Act/by-laws. The Body Corporate took the position that the Lot Owner was ultimately liable for the damage as the damage occurred in the course of an activity that concerned the Occupier, and so the Body Corporate forwarded the invoice for the repair of the door to the Owner for payment.

However, the Adjudicator deemed those two by-laws invalid at law on a number of grounds including:

  • “Innumerable adjudicators’ decisions have concluded that provisions such as those contemplated in the 2 by-laws are invalid because they purport to impose a monetary liability”;
  • “Whilst it seems rational and in the interests of the Body Corporate to pass such costs on to individual owners, it is simply beyond the authority to record such a by-law”;
  • A body corporate may have a legitimate claim for liability against an individual in respect of damage caused to common property, however, a by-law cannot impose such liability;
  • The imposing of liability on an owner that is caused by the conduct of someone else (occupier or Invitee) places a significant burden on owners for the conduct of others that may be outside their reasonable control
  • It is unreasonable to expect an owner to exercise total control over the conduct of others
  • The Act imposes a responsibility on the Body Corporate, not owners, to enforce the by-laws therefore it is unreasonable to expect an owner to impose them on their occupiers/invitees.
Importantly, these orders reconfirm by-laws that purport to pass liability of an action to an owner, or impose monetary liabilities onto owners, are invalid on the basis they conflict with the limitations of by-laws under the Act and are unreasonable and oppressive.
Body Corporate communities should have their by-laws reviewed on a regular basis to ensure they are valid and keeping with industry standards.
Contact us for expert advice on Body Corporate matters. MBA Lawyers has the most experienced and well-respected body corporate and management rights lawyers in the country. We are also one of very few firms in Australia that has expertise and experience in dealing with the Building Unit and Group Titles Act (BUGTA), Integrated Resort Development Act (IRA) and Sanctuary Cove Resort Act (SCRA).