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It is the responsibility of the Body Corporate to enforce the By-Laws in place within the scheme. The Committee usually takes on the responsibility of ensuring all Owners and Occupiers comply with the By-Laws however, Owners and Occupiers may also enforce action if conditions aren’t met. Enforcing the By-Laws usually begins with issuing breach and contravention notices however, there are some limited circumstances in which these notices are not required.
Initial Procedures by the Body Corporate
Sections 182, 183 and 184 of the BCCM Act (when read together) provide that contravention notices must be issued before any formal enforcement action is taken.
Continuing Contravention Notice
This relates to a person or persons who have breached the Body Corporate’s By-laws, and it is likely that the contravention will continue. This notice must outline the By-law which has been contravened, details of the breach or breaches that have taken place, and stipulate a reasonable time frame in which the situation is to be remedied.
Purpose: The purpose of this notice is to require the person/s to remedy the contravention within an allocated time frame.
Example for issue of this notice: An Owner or Occupier is keeping an animal within their Lot without approval from the Body Corporate.
Future Contravention Notice
This notice works in the same way, except the ‘breach’ refers to a contravention of the By-laws and the circumstances of the contravention make it likely that the contravention will be repeated. The Body Corporate may give the Owner notice that if this contravention is repeated, proceedings can be commenced in the Magistrate’s Court without further notice.
Purpose: The purpose of this notice is to ensure the person/s do not to repeat the contravention.
Example for issue of this notice: An Owner or Occupier has held a noisy party which contravenes the noise By-Law.
The decision to serve a Contravention Notice can be made by the Committee or by the Body Corporate at a general meeting.
Copy of Contravention to be given to Owner
If the Body Corporate issues a Contravention Notice to an individual who is not the Owner of a Lot included in the scheme, they must also give a copy of the notice to the Owner of the Lot. The copy of the notice must be given to the Owner when or as soon as practicable after the notice is given to the Occupier as per Section 187 of the BCCM Act 1997.
Consequences of failure to comply with a Contravention Notice
The Body Corporate can either commence enforcement proceedings at the Magistrate’s Court or lodge an Application to Resolve a Dispute with the Commissioner for Body Corporate Management at the first step if the notice was unobserved. In most cases, the Body Corporate proceed with an Application to Resolve a Dispute with the Commissioner for Body Corporate Management as the option to commence enforcement proceedings at the Magistrate’s Court can be a very lengthy process. A Contravention Notice must be issued prior to commencing either of these options.
The Body Corporate, a Lot Owner or Occupier may lodge an application without giving initial notice if the requirements set out in Section 186 of the BCCM Act are met, namely
- ‘special circumstances’ justify the dispute being resolved urgently. Special circumstances include contraventions which:
- are likely to cause injury to people or serious damage to property;
- are at risk to people’s health or safety;
- are causing serious nuisance to people;
- for another reason, give rise to an emergency, or
- the By-Law contravention is incidental to an application for another order under Section 281 of the BCCM Act (namely an application for an order to repair, damage or reimburse amount/s paid for carrying out repairs).
