Understanding scheme by-laws
Scheme by-laws are rules established by the community corporation to regulate itself, as allowed or provided for by the Community Titles Act 2018 (the Act).
As with strata titles schemes, community titles schemes will have by-laws that owners, occupiers, lessees and body corporates must abide by. However, unlike strata by-laws, the Act makes no distinction between governance and conduct by-laws, and the Act does not include a standard set of by-laws.
Scheme by-laws are required to be registered as part of the scheme documents for registration of a community titles scheme within a community scheme.
Any disputes about consistency of scheme by-laws may be resolved by the State Administrative Tribunal (SAT).
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Who do scheme by-laws apply to?
Each community titles scheme must have scheme by-laws. Scheme by-laws apply to the community titles scheme that creates them, as well as to the community titles schemes that belong to that scheme. This means that the a community titles scheme's by-laws apply to:
- The community corporation for the community titles scheme.
- A member of the community corporation for the community titles scheme.
- The members of a community corporation for any community titles scheme that belongs to that scheme.
- An occupier or lessee of a lot in the community titles scheme.
- An occupier or lessee of common property in the community titles scheme.
- An occupier or lessee of common property in a community titles scheme that belongs to that scheme.
Content of scheme by-laws
Scheme by-laws may deal with certain matters
Scheme by-laws:
- May determine the membership of the council of the community corporation and establish a scheme for the appointment or election of members of the council of the community corporation.
- May determine procedures of the council of the community corporation, including how it holds meetings and how it makes decisions.
- Must assign each of the following functions (relating to procedural matters) to a specified officer of the community corporation:
- The function of presiding at meetings of the community corporation and making decisions on quorum or other procedural matters at those meetings.
- The function of presiding at meetings of the council of the community corporation and making decisions on quorum or other procedural matters at those meetings.
- Must assign each of the following functions (relating to financial matters) to a specified officer of the community corporation:
- Receiving, acknowledging, banking and accounting for money paid to the community corporation.
- Keeping proper accounting records and preparing financial statements and budgets for the community corporation.
- Must assign each of the following functions (relating to matters of administration) to a specified officer of the community corporation:
- Notifying members of the community corporation of contributions to be raised from them under the Act.
- Keeping the records of the community corporation and of the council of the community corporation.
- Arranging meetings of the community corporation and of the council of the community corporation.
- Preparing and distributing minutes of meetings of the community corporation and of the council of the community corporation.
- Giving and receiving notices on behalf of the community corporation under the Act.
- Answering communications addressed to the community corporation or to the council of the community corporation.
- Keeping documents and making them available for inspection as required under the Act.
- Attending to matters of an administrative or secretarial nature in connection with the functions of the community corporation or the council of the community corporation.
- Must establish a scheme for the appointment or election of each officer of a community corporation who is assigned a function.
- May specify arrangements for the day-to-day control and management of the common property in the scheme, including infrastructure on the common property.
- May specify arrangements for the day-to-day control and management of utility services subject to a utility service easement.
Scheme by-laws can deal with other necessary matters
Scheme by-laws can also:
- Provide for other matters as contemplated by the Act, or as necessary or expedient:
- For the management, control, use or enjoyment of a lot or common property in the community titles scheme.
- To govern the functions or procedures of the community corporation.
- To manage the relationship between the community corporation, related community corporations and their members.
- Prohibit or regulate the conduct of a person on the tier parcel.
- Require the taking of particular safety or security measures by members of the community corporation.
- Provide for, and make rules about, the provision of services or amenities to owners or occupiers of lots in the community titles scheme or in a related community titles scheme, including for the payment of fees and charges for the services or the use of the amenities.
- Prohibit or regulate the construction or modification of buildings or improvements on a lot or common property in the community titles scheme.
- Provide for a method of apportioning contributions between members of the community corporation other than according to the relative unit entitlements of their lots and tier parcels for all specified purposes.
- Include exclusive use by-laws.
Exclusive use by-laws
Exclusive use by-laws may be created which grant exclusive use and enjoyment of, or special privileges in respect of, common property or specified common property in the community titles scheme for:
- the occupiers of a specified lot or lots in the community scheme, or
- all lots in a specified community titles scheme in the community scheme (special lots).
Exclusive use by-laws may only be made with the consent of the owner of each lot proposed to be a special lot, or, if the exclusive use is being given to all lots in a community titles scheme, with the written consent of the community corporation. Exclusive use by-laws may be repealed without such consent.
Validity of scheme by-laws
Scheme by-laws may be invalid
Scheme by-laws are invalid where they:
- Are made without power to make the by-laws.
- Are inconsistent with the Act or any other legislation.
- Are inconsistent with the community development statement for the community scheme.
- Are inconsistent with a restricted use condition.
- Are inconsistent with the scheme by-laws for the scheme that it belongs to, such as:
- Tier 2 by-laws that are inconsistent with tier 1 by-laws.
- Tier 3 by-laws that are inconsistent with by-laws for the tier 2 scheme or tier 1 scheme to which it belongs.
- Deny or limit a member of a community corporation’s right to vote on a proposed resolution (except the prevention of a member from voting on an ordinary resolution if the member has outstanding contributions to the community corporation)
- Prohibit or restrict the devolution or other dealing with a lot.
- Discharge or modify an easement or restrictive covenant.
- Are unfairly prejudicial or unfairly discriminate against one or more owners of the lots or they are oppressive or unreasonable.
- Affect the keeping of an assistance animal by a person with a disability who is an owner or occupier of a lot.
- Affect the use (on a lot or on common property) of an assistance animal by a person with a disability.
Making, amending and repealing scheme by-laws
By-laws of a community titles scheme may be made, amended or repealed by special resolution of the community corporation, but have no effect until registered by the Registrar of Titles.
The Registrar of Titles cannot accept lodgement of scheme by-laws if more than three months has passed since the by-law was made, amended or repealed by special resolution of the community corporation.
The Registrar of Titles may, but is not obliged to, check the scheme by-laws for compliance with the Act. The Act provides that registration of the scheme by-laws does not mean they are valid or enforceable, and the enforceability of scheme by-laws is not guaranteed by the State.
Enforcing scheme by-laws
The breach of any scheme by-law may result in the State Administrative Tribunal (SAT) ordering the person who breached the by-law to pay a penalty to the community corporation.
Enforcement of scheme by-laws by community corporation
The two ways in which a community corporation can enforce scheme by-laws are outlined below.
- By serving notice of the breach on any person or member community corporation bound by the by-laws. The notice must specify what by-law has been breached and request compliance.
- By applying to SAT for an order to enforce scheme by-laws where any one of the following applies:
- The contravention of a by-law has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by-law.
- Where the person has contravened the by-law on at least three occasions.
- The person has been given written notice by the community corporation and has contravened the notice.
Enforcement of scheme by-laws by other parties
Applications to SAT to enforce scheme by-laws can also be made by:
- A member of the community corporation.
- A mortgagee of a lot in the community titles scheme.
- An occupier of a lot in the community titles scheme.
In respect of exclusive use by-laws, the owner of a lot that is a special lot or, where all of the lots in the scheme are special lots, the community corporation may also apply to SAT to enforce by-laws.
The grounds on which such an application may be made include if:
- A person other than the community corporation has received written notice under the Act of their alleged contravention of the scheme by-laws, and contravenes the notice.
- The contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by-laws.
- The person has contravened the particular scheme by-law on at least three separate occasions.
Orders that can be made by SAT
If SAT is satisfied that a person has contravened the scheme by-laws, it may order the person to:
- Pay a specified amount to the community corporation by way of penalty.
- Take specified action within a period stated to remedy the contravention or prevent further contraventions.
- Refrain from taking specified action to prevent further contraventions.
A penalty cannot be imposed on the community corporation. A penalty must not exceed an amount fixed by the regulations. An amount ordered to be paid on a penalty is recoverable as a debt in a court of competent jurisdiction.
See scheme disputes for more on the State Administrative Tribunal's procedures.