Lot owners breaching body corporate by-laws is a common problem that body corporates often face.
MBA Lawyers recently solved this problem for a Gold Coast body corporate when it successfully ran one of the first court cases in Queensland which resulted in an administrator being appointed to oversee the demolition of an unapproved established sunroom.
The lot owner was also ordered to reimburse thousands of dollars to the body corporate and pay any costs incurred by the appointment of an administrator.
The facts of the case
The Gold Coast body corporate complex in this case had approximately 40 townhouse lots.
The lot in question had exclusive use to some common property behind their fence. However, the bylaws for this complex, like many other complexes, prohibited the lot owner from making any improvement to the lot or exclusive use area without body corporate approval.
In this case, the lot owner constructed a patio, much like a sunroom, without prior approval.
Through an adjudicator, the lot owner was ordered to demolish the sunroom, and reinstate the area to its former condition, within three months. The lot owner was advised of the consequences if they did not comply with the order.
Three months passed and the lot owner did not complete and or even start to demolish the sunroom.
Where to now?
The body corporate had the option to remove the sunroom itself and recover the costs of doing that from the lot owner. There is a power in the body corporate legislation to do that. However, access would be needed to the lot and behind the fence to demolish the sunroom, which was not practical and would result in the need to make a further application seeking access.
On MBA’s advice the body corporate instructed MBA Lawyers to do three things, which were successfully achieved/obtained.
- To seek the appointment of an administrator to perform the ordered works;
- The lot owner to pay the administrator’s costs;
- The lot owner to pay the body corporate’s costs.
What does all this mean?
Firstly, if a committee reasonably believes a by-law is being breached, it needs to receive advice as to whether that by-law is valid and enforceable.
Just because a body corporate has a by-law does not necessarily mean it is enforceable.
Secondly, if the by-law is valid and enforceable, the body corporate should seriously consider enforcing that by-law. It has a statutory duty to do so.
Third, if the by-law is valid and enforceable and has been breached, there is a real prospect that a court will intervene and appoint an administrator to perform the works ordered by an adjudicator.
And lastly, a court can exercise its power, as it did in this case, to order the lot owner to reimburse thousands of dollars to the body corporate and to pay the administrator’s costs.
Body Corporate expert Clayton Glenister says this type of strong action by a committee sets a positive precedent for all other lot owners in that complex.
“If any of your complexes are having similar issues, or you simply want to have a chat about by-law breaches, we welcome you to contact us,” he says.