Chapter 3 Management of community titles schemes

(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including enforcing any by-laws for the scheme in the way provided under this Act); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

Examples for subsection (2) of a body corporate making a decision—

• passing a motion by resolution at a general meeting or a committee meeting

• not passing a motion after a vote at a general meeting or a committee meeting

• owners of lots included in a specified two-lot scheme entering into a lot owner agreement for the scheme (see section 111E (2))

• owners of lots included in a specified two-lot scheme failing to enter into a lot owner agreement following a request made by one of the owners (see section 111H (3))

(1) The body corporate for a community titles scheme has all the powers necessary for carrying out its functions and may, for example—

(a) enter into contracts; and

(b) acquire, hold, deal with, and dispose of property; and

(c) employ staff.

(2) Without limiting subsection (1), the body corporate has the other powers given to it under this Act or another Act.

(1) A body corporate must not carry on a business.

Examples—

A body corporate must not carry on business as—

• a letting agent

• a tour operator

• a restaurant business

• a real estate developer

• a land trader.

(2) However, the body corporate may—

(a) engage in business activities to the extent necessary for properly carrying out its functions; and

(b) invest amounts not immediately required for its purposes in the way a trustee may invest trust funds.

Examples for subsection (2)(a)—

1 leasing part of the common property

2 selling body corporate assets no longer required for the scheme

A body corporate can not delegate its powers.

Note—

But see part 2, division 2.

Division 2 Committee for body corporate

This division applies if, under the regulation module applying to a community titles scheme, there must be a committee for the body corporate.

(1) The committee must be composed in the way provided for in the regulation module.

(2) The members of the committee are chosen in the way provided for in the regulation module.

(3) The regulation module may also provide for—

(a) the term of office of a member of the committee; and

(b) vacancies on the committee, and the filling of casual vacancies.

(1) A decision of the committee is a decision of the body corporate.

(2) Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee.

(3) Despite anything in a contract with the body corporate (including the engagement of a body corporate manager), a decision of the body corporate manager is void to the extent that it is inconsistent with a decision of the body corporate’s committee.

(4) If persons, honestly and reasonably believing that they are the committee for the body corporate, make a decision while purportedly acting as the committee, the decision is taken to be a decision of the committee despite a defect in the election of 1 or more of the persons.

(5) The committee must act reasonably in making a decision.

(1) The procedures and powers of the committee are stated in the regulation module.

(2) Without limiting subsection (1), the committee must put into effect the lawful decisions of the body corporate.

(1) A committee member is not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member.

(2) In this section—

act done or omission made, does not include the publication of defamatory matter as mentioned in section 111A (1).

(1) The code of conduct in schedule 1A applies to each person (a committee voting member) who is—

(a) a committee member for a community titles scheme; and

(b) a voting member of the committee under the regulation module applying to the scheme.

(2) On becoming a committee voting member, the person is taken to have agreed to comply with the code of conduct.

(3) If a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation.

Division 3 Proxies

The regulation module applying to a community titles scheme may, for meetings of the committee for the body corporate, provide for the following—

(a) whether a member of the committee may appoint a person to act as the member’s proxy in the absence of the member from a meeting of the committee;

(b) who may or may not be appointed to act as a member’s proxy;

(c) the way a proxy is appointed;

(d) the way proxies may be used;

(e) authority for the body corporate to prohibit the use of proxies for some or all matters;

(f) the maximum period a person’s appointment as a member’s proxy may stay in force.

The regulation module applying to a community titles scheme may, for meetings of the body corporate, provide for the following—

(a) whether a member of the body corporate may appoint a person to act as the member’s proxy in a general meeting of the body corporate;

(b) who may or may not be appointed to act as a member’s proxy;

(c) the way a proxy is appointed;

(d) the way proxies may be used;

(e) authority for the body corporate to prohibit the use of proxies for some or all matters;

(f) the maximum period a person’s appointment as a member’s proxy may stay in force.

Division 4 Body corporate meetings

(1) The body corporate for a community titles scheme (scheme A) must—

(a) hold meetings of the types, and for the purposes, prescribed under the regulation module applying to scheme A; and

(b) conduct the meetings—

(i) in the way prescribed under the regulation module; and

(ii) to the extent the regulation module does not prescribe the way to conduct meetings—in the way decided by the body corporate.

(2) The regulation module may include provisions about the representation, on the body corporate for scheme A, of the body corporate for another community titles scheme that is a lot included in scheme A.

(1) This section applies if a motion is to be decided by resolution without dissent at a general meeting of the body corporate for a community titles scheme.

(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.

(3) The motion is passed by resolution without dissent only if no vote is counted against the motion.

(1) This section applies if a motion is to be decided by special resolution at a general meeting of the body corporate for a community titles scheme.

(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.

(3) The motion is passed by special resolution only if—

(a) at least two-thirds of the votes cast are in favour of the motion; and

(b) the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme; and

(c) the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme.

(1) This section applies if a motion is to be decided by majority resolution at a general meeting of the body corporate for a community titles scheme.

(2) One vote only may be exercised for each lot included in the scheme.

(3) The vote—

(a) must be written; and

(b) can not be exercised by proxy.

(4) The motion is passed by majority resolution only if the votes counted for the motion are more than 50% of the lots for which persons are entitled to vote on the motion.

(1) This section applies if—

(a) a motion is to be decided by ordinary resolution at a general meeting of the body corporate for a community titles scheme; and

(b) no poll is requested for the counting of the vote on the motion.

(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.

(3) The motion is passed by ordinary resolution only if the votes counted for the motion are more than the votes counted against the motion.

(1) A person entitled to vote at a general meeting of the body corporate for a community titles scheme may ask for a poll for the counting of the vote on a motion to be decided by ordinary resolution, other than an ordinary resolution conducted by secret ballot.

(2) The person must ask for the poll—

(a) in person at the meeting; or

(b) on the voting paper on which the person votes in respect of the motion, whether or not the person is personally present at the meeting.

(3) The request for a poll—

(a) may be made whether or not the meeting has already voted on the motion other than by poll; and

(b) may be withdrawn by the person who made it at any time before the poll is completed.

(4) However, the request under subsection (3)(a) must be made no later than—

(a) if the motion (motion A) is not the last motion to be considered at the meeting—before the meeting decides the next motion to be considered after motion A; or

(b) if motion A is the last motion to be considered at the meeting—before the meeting ends.

(1) This section applies if—

(a) a motion is to be decided by ordinary resolution at a general meeting of the body corporate for a community titles scheme; and

(b) a poll is properly requested for the counting of the vote on the motion.

(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.

(3) The motion is passed by ordinary resolution only if the total of the contribution schedule lot entitlements for the lots for which votes are counted for the motion is more than the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion.

(1) This section—

(a) provides a way for the body corporate for a community titles scheme to decide a motion other than at a general meeting; but

(b) applies to a community titles scheme only if the regulation module applying to the scheme says it applies.

(2) A resolution on a motion may be passed by the body corporate, and has effect as a resolution without dissent, special resolution or ordinary resolution as may be required for the motion, even though the motion is not placed before and decided at a general meeting of the body corporate, if—

(a) a vote on the motion is exercised for each lot included in the scheme; and

(b) the vote for each lot is exercised by a person who would be entitled (other than merely as a proxy) to exercise the vote for the lot at a general meeting held to decide the motion; and

(c) each vote is a vote for the motion; and

(d) each vote is given or confirmed in writing.

(1) This section applies if—

(a) the committee for the body corporate for a community titles scheme publishes required material for a general meeting of the body corporate under the regulation module applying to the scheme; and

(b) the required material contains defamatory matter.

(2) Each of the following is not liable for defamation by the publication of the defamatory matter as mentioned in subsection (1)—

(a) the body corporate;

(b) the committee, or a member of the committee, other than a member of the committee who submitted the motion or explanatory note containing the defamatory matter.

(3) In this section—

committee or member of the committee, for a community titles scheme for which a body corporate manager is engaged to carry out the functions of a committee for the body corporate and each of its executive members, means the body corporate manager.

required material, for a general meeting of the body corporate, means any of the following required under the regulation module applying to the community titles scheme to be published for the general meeting—

(a) a motion submitted other than by or for the committee for the general meeting;

(b) the substance of a motion mentioned in paragraph (a);

(c) an explanatory note for a motion mentioned in paragraph (a) prepared by the submitter of the motion.

Division 5 Special management arrangements for specified two-lot schemes

Subdivision 1 Preliminary

This division provides—

(a) that particular provisions of this chapter about management structures and arrangements for a community titles scheme do not apply to a specified two-lot scheme; and

(b) for a simplified decision-making process by which the body corporate for a specified two-lot scheme may make a decision or may be taken to have made a decision; and

(c) for a person to act as the representative of an owner of a lot included in a specified two-lot scheme.

(1)

A specified two-lot scheme means a community titles scheme to which all of the following apply—

(a) there are only 2 lots included in the scheme;

(b) the scheme is not part of a layered arrangement of community titles schemes;

(c) there is no letting agent for the scheme;

(d) the lots included in the scheme are residential lots.

(2) A community titles scheme is also a specified two-lot scheme if subsection (1)(a) to (c) apply to the scheme and either—

(a) all of the following apply to the scheme—

(i) the lots included in the scheme are not residential lots;

(ii) the first community management statement (which could be the community management statement recorded for the scheme on its establishment) identified the specified two-lot schemes module as the regulation module applying to the scheme;

(iii) when that community management statement was recorded, the lots included in the scheme were intended to be residential lots; or

Example of circumstances in which paragraph (a) may apply—

Lots included in a community titles scheme were offered for sale as residential lots, but the buyers chose not to use them as residential lots.

(b) all of the following apply for the scheme—

(i) the lots included in the scheme have previously been, but are no longer, residential lots;

(ii) when the lots included in the scheme last stopped being residential lots, the community management statement for the scheme identified the specified two-lot schemes module as the regulation module applying to the scheme;

(iii) since the lots included in the scheme last stopped being residential lots, each community management statement (if any) recorded for the scheme has identified the specified two-lot schemes module as the regulation module applying to the scheme.

(3) In this Act, a reference to a specified two-lot scheme is a reference to a community titles scheme—

(a) that is a specified two-lot scheme within the meaning of subsection (1) or (2); and

(b) whose community management statement identifies the specified two-lot schemes module as the regulation module applying to the scheme.

(4) In this section—

residential lot means a lot that is used for residential purposes, and includes a lot that is—

(a) the subject of a lease or letting for accommodation for long or short term residential purposes; or

(b) immediately available to be the subject of a lease or letting for accommodation for long or short term residential purposes.

Divisions 2 to 4 do not apply to a specified two-lot scheme.

Subdivision 2 Decision making for specified two-lot schemes

(1) A lot owner agreement for a specified two-lot scheme is an agreement between the owners of the lots included in the scheme about a matter—

(a) related to the carrying out of the functions given to the body corporate under this Act and the community management statement; and

(b) for which the body corporate is required or permitted to make a decision under this Act or the community management statement.

(2) A lot owner agreement for a specified two-lot scheme is a decision of the body corporate.

(1) A lot owner agreement for a specified two-lot scheme must be entered into in the way prescribed under the specified two-lot schemes module.

(2) Without limiting subsection (1), the regulation module may include provisions about the following—

(a) a representative for an owner of a lot included in the scheme entering into a lot owner agreement on behalf of the owner;

(b) circumstances in which, if there is more than 1 owner of a lot included in the scheme, the owners of the lot are taken to have entered into a lot owner agreement.

(1) This section applies if a provision of this Act or the community management statement requires or permits the body corporate for a community titles scheme to make a decision about a matter related to the carrying out of the functions given to the body corporate under this Act and the community management statement—

(a) in any of the following ways—

(i) by resolution without dissent;

(ii) by special resolution;

(iii) by majority resolution;

(iv) by ordinary resolution; or

(b) without stating the way in which the decision is to be made.

(2) The body corporate may only make the decision by a lot owner agreement.

(1) The owner of a lot included in a specified two-lot scheme may ask the owner of the other lot included in the scheme to enter into a lot owner agreement about a proposed decision.

(2) A request under subsection (1) must—

(a) be made in the way prescribed under the specified two-lot schemes module; and

(b) state a reasonable period for the owner of the lot to whom the request is made to enter into a lot owner agreement about the proposed decision.

(3) If the owner of the lot to whom the request is made does not enter into a lot owner agreement about the proposed decision within the period stated, the body corporate is taken to have decided against making the proposed decision contained in the request.

(4) Subsection (3) applies despite section 111G (2).

(5) In this section—

proposed decision means a proposed decision—

(a) about a matter related to the carrying out of the functions given to the body corporate under this Act and the community management statement; and

(b) that the body corporate is required or permitted to make under this Act or the community management statement.

A decision of the body corporate for a specified two-lot scheme made by a lot owner agreement may be amended or revoked by another lot owner agreement.

Subdivision 3 Representatives of owners of lots

(1) A person may act as a representative for an owner of a lot included in a specified two-lot scheme in the circumstances prescribed under the specified two-lot schemes module.

(2) Without limiting subsection (1), the regulation module may include provisions about the following—

(a) authorisation of a representative to act for an owner of a lot included in the scheme, and amendment and revocation of that authorisation;

(b) functions and powers of a representative authorised to act for an owner of a lot included in the scheme.

Part 2 Body corporate managers, service contractors and letting agents

Division 1 Body corporate manager and service contractor engagements and letting agent authorisations

(1) This section applies if—

(a) the body corporate for a community titles scheme intends to—

(i) engage a person as the body corporate manager or a service contractor (the contracted party); or

(ii) authorise a person to conduct a letting agent business (also the contracted party); and

(b) the engagement or authorisation is to be made or given in the original owner control period.

(2) The original owner must exercise reasonable skill, care and diligence and act in the best interests of the body corporate, as constituted after the original owner control period ends, in ensuring each of the following—

(a) the terms of the engagement or authorisation achieve a fair and reasonable balance between the interests of—

(i) the contracted party; and

(ii) the body corporate as constituted after the original owner control period ends;

(b) the terms are appropriate for the scheme;

(c) the powers able to be exercised, and functions required to be performed, by the contracted party under the engagement or authorisation—

(i) are appropriate for the scheme; and

(ii) do not adversely affect the body corporate’s ability to carry out its functions.

Maximum penalty—300 penalty units.

(3) If the body corporate or an owner of a lot included in the scheme incurs loss or damage because of the original owner’s contravention of subsection (2), the body corporate or owner may claim compensation from the original owner in a proceeding brought in a court of competent jurisdiction.

(1) The body corporate for a community titles scheme must not seek or accept the payment of an amount, or the conferral of a benefit, for—

(a) the engagement of a person as a service contractor for the scheme (including a replacement or renewal of an engagement of the person as a service contractor); or

(b) the authorisation of a person as a letting agent for the scheme (including a replacement or renewal of an authorisation of the person as a letting agent); or

(c) extending the term of—

(i) an engagement of a person as a service contractor for the scheme; or

(ii) an authorisation of a person as a letting agent for the scheme.

(2) Subsection (1)(b) does not apply to the first authorisation given after the original owner control period ends if—

(a) the amount or benefit sought or accepted for the authorisation represents fair market value for the authorisation; and

(b) no authorisation was given during the original owner control period.

(3) If an amount is paid to, or a benefit is accepted by, the body corporate in contravention of subsection (1), the person who paid the amount or conferred the benefit may recover the amount, or the value of the benefit, as a debt.

(1) The engagement of a person as a service contractor for a community titles scheme must not include, whether directly or indirectly, a requirement for the payment of an amount to, or the conferral of a benefit (other than the services the service contractor is engaged to supply) on, the body corporate.

(2) If an amount is paid to, or a benefit is accepted by, the body corporate under a requirement mentioned in subsection (1), the person who paid the amount or conferred the benefit may recover the amount, or the value of the benefit, as a debt.

(3) Subsection (1) does not apply to an amount or benefit representing fair market value for an entitlement conferred (not including the actual engagement as service contractor) by the body corporate under the engagement.

Examples of operation of subsection (3)—

1 If under the engagement the service contractor may make use of a body corporate asset, the engagement might include a requirement for the service contractor to pay an amount of rent for the asset’s use. To the extent that the amount is more than a fair rent, the amount would be recoverable under subsection (2).

2 If under the engagement the service contractor may use a part of the common property (for example, utility infrastructure), the engagement might include a requirement for the service contractor to pay an amount of rent for the use of the part of the common property. To the extent that the amount is more than a fair rent, the amount would be recoverable under subsection (2).

(4) Also, subsection (1) does not apply to an amount or benefit for the reasonable costs incurred by the body corporate in preparing an agreement between the body corporate and service contractor for the engagement.

(5) This section applies only to an engagement (including the extension, renewal or replacement of an engagement) the term of which starts after the commencement.

(1) The authorisation of a person as a letting agent for a community titles scheme must not include, whether directly or indirectly, a requirement for the payment of an amount to, or the conferral of a benefit on, the body corporate.

(2) If an amount is paid to, or a benefit is accepted by, the body corporate under a requirement mentioned in subsection (1), the person who paid the amount or conferred the benefit may recover the amount, or the value of the benefit, as a debt.

(3) Subsection (1) does not apply to an amount or benefit representing fair market value for an entitlement conferred (not including the actual authorisation as letting agent) by the body corporate under the authorisation.

Examples of operation of subsection (3)—

1 If under the authorisation the letting agent may make use of a body corporate asset, the authorisation might include a requirement for the letting agent to pay an amount of rent for the asset’s use. To the extent that the amount is more than a fair rent, the amount would be recoverable under subsection (2).

2 If under the authorisation the letting agent may use a part of the common property (for example, utility infrastructure), the authorisation might include a requirement for the service contractor to pay an amount of rent for the use of the part of the common property. To the extent that the amount is more than a fair rent, the amount would be recoverable under subsection (2).

(4) Also, subsection (1) does not apply to—

(a) an amount or benefit for the actual authorisation as letting agent if—

(i) the amount or benefit represents fair market value for the authorisation; and

(ii) the authorisation is the first authorisation given after the original owner control period ends; and

(iii) no authorisation was given during the original owner control period; or

(b) an amount or benefit for the reasonable costs incurred by the body corporate in preparing an agreement between the body corporate and letting agent for the authorisation.

(5) This section applies only to an authorisation (including the extension, renewal or replacement of an authorisation) the term of which starts after the commencement.

(1) This section applies to a person who becomes a letting agent for a community titles scheme after the commencement of this section.

(2) If the letting agent business is conducted from a lot, other than lessee common property, included in the scheme, at all times, either—

(a) the letting agent must be the registered owner or lessee of the lot; or

(b) a deed must be in place between the body corporate and the person (the lot holder) who is the registered owner or lessee of the lot, under which the lot holder agrees to transfer the lot holder’s interest in the lot, in accordance with the arrangements provided for in the deed, if the letting agent is required to transfer the letting agent’s management rights under division 8.

(3) The rights and obligations of the body corporate and the lot holder under the deed must correspond as far as practicable with the rights and obligations the body corporate and the letting agent would have under division 8 were the letting agent the registered owner or lessee of the lot.

(4) The arrangements provided for in the deed may include—

(a) arrangements for ensuring, to the greatest practicable extent, that the transfer of the lot holder’s interest in the lot happens at the same time as the transfer of the letting agent’s management rights under division 8; and

(b) authority, whether or not supported by a power of attorney, for the body corporate to act in the place of the lot holder if the lot holder does not comply with the lot holder’s obligations under the deed for the transfer of the lot holder’s interest in the lot.

(5) If the lot holder does not enter into the deed mentioned in subsection (2)(b), the letting agent’s authorisation as letting agent has no effect.

A contract is not void merely because it includes 2 or more of the following—

(a) the engagement of a person as a body corporate manager for a community titles scheme;

(b) the engagement of a person as a service contractor for a community titles scheme;

(c) the authorisation of a person as a letting agent for a community titles scheme.

(1) The code of conduct in schedule 2 applies to—

(a) a body corporate manager in performing obligations under the person’s engagement as the body corporate manager; and

(b) a caretaking service contractor in performing obligations under the person’s engagement as a service contractor.

(2) The provisions of the code are taken to be included in the terms of the contract providing for the person’s engagement.

(3) If there is an inconsistency between a provision of the code and another term of the contract, the provision of the code prevails.

(4) If the contract was in force immediately before the commencement of this section, this section applies only for things done or omitted to be done by the person after the commencement.

Division 2 Performance of powers of body corporate committee and executive members by body corporate manager

(1) This section applies if there is a committee for the body corporate.

(2) The body corporate, in writing, may authorise the body corporate manager to exercise some or all of the powers (authorised powers) of an executive member of the committee.

(3) However, the body corporate must not prevent the executive member from—

(a) exercising an authorised power; or

(b) directing the body corporate manager about how an authorised power is to be exercised.

(4) The body corporate, in writing, may revoke the authorisation at any time.

(1) This section applies if, under a regulation module applying to a community titles scheme, there is no committee for the body corporate.

(2) However, this section does not apply to a specified two-lot scheme.

(3) The body corporate, in writing, may authorise the body corporate manager to exercise the powers (authorised powers) of a committee for a body corporate and an executive member of a committee.

(4) The body corporate, in writing, may revoke the authorisation at any time.

(1) A decision of a body corporate manager in exercising a power under an authorisation given under section 120 is a decision of the body corporate.

(2) Subsection (1) does not apply to a decision that, under the regulation module applying to the scheme, is a decision on a restricted issue for a committee for a body corporate.

Division 3 Regulations

(1) The regulation module applying to a community titles scheme may prescribe all or any of the following things about the engagement of a person as a body corporate manager or service contractor, or the authorisation of a person as a letting agent, for the scheme—

(a) requirements with which the engagement or authorisation must comply, including, for example, the term of the engagement or authorisation;

(b) consequences of not complying with the requirements mentioned in paragraph (a);

(c) extending or renewing the engagement or authorisation;

(d) particular circumstances under which the engagement or authorisation may or may not be terminated or transferred, despite anything in the engagement or authorisation or in another agreement or arrangement;

(e) disclosure requirements;

(f) provisions about the occupation of common property for the engagement or authorisation, including whether the provisions are the only way in which the occupation may be authorised;

(g) matters about a service contractor’s right of access over common property for performing obligations, other than an obligation to supply utility services, under the engagement.

(2) Subsection (3) applies to an engagement or authorisation if section 113 has previously applied to—

(a) the engagement or authorisation; or

(b) the extension of the term of the engagement or authorisation.

(3) The regulation module applying to a community titles scheme may also provide for the payment of an amount to the body corporate by the service contractor or letting agent under the engagement or authorisation if any rights under the engagement or authorisation are transferred to another entity within a period prescribed under the regulation module.

Division 4 Protection for financier of contract

(1) For this division, a person is a financier for a contract if a contractor for the contract and the person give written notice signed by each of them to the body corporate under the contract that the person is a financier for the contract.

(2) For this division, a person stops being a financier for a contract if the person gives the body corporate under the contract a written notice withdrawing the notice given under subsection (1).

(3) A notice under subsection (2) may be given without the contractor’s agreement.

(4) However, a person is a financier for the contract only if the person is—

(a) a financial institution; or

(b) a person who, in the ordinary course of the person’s business, supplies, or might reasonably be expected to supply, finance for business acquisitions, using charges over contracts as the whole or part of the person’s security; or

(c) if the contract is in existence immediately before the commencement—a person who, at the time the person supplied finance for a business acquisition, using a charge over the contract as the whole or part of the person’s security, was a person mentioned in paragraph (b).

(1) This section applies if a notice under section 123 given to a body corporate does not state the financier’s address for service for notices given by the body corporate under this division.

(2) The financier must, as soon as practicable after the notice is given, give the body corporate a further written notice stating the address for service.

If the body corporate and a contractor for a financed contract change the contract or enter into an arrangement that affects the contract, the body corporate must give the financier written notice of the change or arrangement.

(1) The body corporate under a financed contract may terminate the contract if—

(a) the body corporate has given the financier for the contract written notice, addressed to the financier at the financier’s address for service, that the body corporate has the right to terminate the contract; and

(b) when the notice was given, circumstances existed under which the body corporate had the right to terminate the contract; and

(c) at least 21 days have passed since the notice was given.

(2) However, the body corporate can not terminate the contract if, under arrangements between the financier and the contractor for the contract, the financier—

(a) is acting under the contract in place of the contractor; or

(b) has appointed a person as a receiver or receiver and manager for the contract.

(3) A financier may take the action mentioned in subsection (2)(a) or (b) only if the financier has previously given written notice to the body corporate of the financier’s intention to take the action.

(4) The financier may authorise a person to act for the financier for subsection (2)(a) if—

(a) the person is not the contractor or an associate of the contractor; and

(b) the body corporate has first approved the person.

(5) For deciding whether to approve a person under subsection (4), the body corporate—

(a) must act reasonably in the circumstances and as quickly as practicable; and

(b) may have regard only to—

(i) the character of the person; and

(ii) the competence, qualifications and experience of the person.

(6) However, the body corporate must not—

(a) unreasonably withhold approval of the person; or

(b) require or receive a fee or other consideration for approving the person, other than reimbursement for legal or administrative expenses reasonably incurred by the body corporate for the application for its approval.

(7) Subsection (2) does not operate to stop the body corporate from terminating the contract for something done or not done after the financier started to act under the subsection.

(8) Nothing in this section stops the ending of a financed contract by the mutual agreement of the body corporate, the contractor and the financier.

(9) In this section—

address for service, for a financier, means the financier’s address for service—

(a) for notices given by the body corporate under this division; and

(b) stated in a notice given to the body corporate under section 123 or 124.

(1) A financier for a financed contract must not enter into an agreement or other arrangement with the body corporate under the contract for a matter about—

(a) the role of the financier for the contract; or

(b) arrangements entered into between the financier and contractor for the contract under which the financier is acting, or may act, under the contract in the place of the contractor; or

(c) the operation of this division in relation to the contract.

(2) An agreement or arrangement is void to the extent it contravenes this section.

Division 5 Change of regulation module

(1) This section applies to the engagement of a person as a body corporate manager or service contractor, or the authorisation of a person as a letting agent, for a community titles scheme if—

(a) a new community management statement is recorded in place of the existing statement for the scheme; and

(b) the new statement identifies, as the regulation module applying to the scheme, a regulation module different from the regulation module (the existing regulation module) identified in the existing statement.

(2) The provisions of the existing regulation module applying to the engagement or authorisation continue to apply to the engagement or authorisation until the engagement or authorisation, including any renewal or extension of the engagement or authorisation, comes to an end.

Division 6 [Repealed]

129 [Expired]

Division 7 Review of terms of service contracts

(1) This section applies if—

(a) the body corporate for a community titles scheme—

(i) enters into a service contract with a person after the commencement of this section and within the original owner control period and the person’s term of engagement as the service contractor under the contract has not ended; or

(ii) intends to extend or vary, before 1 January 2005, an existing service contract entered into between the body corporate and a person within the original owner control period; and

(b) the original owner control period has ended.

(2) If requested by the body corporate or person (each a reviewing party), the reviewing parties must, as provided under this division and for the purpose mentioned in section 131, review the terms of the contract that provide for—

(a) the functions and powers of the person as the service contractor; or

(b) the remuneration payable to the person as the service contractor.

(3) The body corporate may make a request under subsection (2) only if the body corporate, by ordinary resolution, has authorised the making of the request.

(4) Subsection (2)(b) does not apply to an existing service contract if its terms that provide for the remuneration payable to the person as the service contractor have been reviewed by the reviewing parties before the commencement of this section.

(5) The review applies to the contract even if the contract also provides for 1 or more of the following—

(a) the person’s engagement as a body corporate manager;

(b) the person’s authorisation as a letting agent.

(6) The contract may be reviewed under this division only once.

The purpose of the review is to help the reviewing parties decide—

(a) if the terms mentioned in section 130 (2) (the reviewable terms) are currently fair and reasonable; and

(b) if the reviewable terms are not currently fair and reasonable—how the reviewable terms should be changed to ensure they are fair and reasonable.

(1) Within 2 months after requesting the review, the reviewing party who requested it must—

(a) obtain from an appropriate person independent written advice (the review advice), based on the review criteria, about the matters mentioned in section 131 (a) and (b); and

(b) give a copy of the advice to the other reviewing party.

Example of appropriate person for subsection (1)(a)—

a person who, in the ordinary course of the person’s business, has knowledge of the functions and powers of service contractors and the remuneration for performing the functions and powers

(2) The review must be carried out having regard to the review criteria.

(3) The body corporate’s final decision about the outcome of the review must be made by ordinary resolution.

(4) The review must be finished as soon as reasonably practicable after a copy of the review advice is given to a reviewing party under subsection (1)(b) and—

(a) before the term of the engagement as service contractor ends; and

(b) within the review period.

(1) This section applies if a dispute arising out of a review carried out, or required to be carried out, under this division exists between the reviewing parties.

(2) A reviewing party may apply—

(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.

(3) The specialist adjudicator or QCAT must have regard to the review criteria in deciding the application.

(4) Subsection (5) applies if only 1 of the reviewing parties has carried out the review.

(5) A dispute is taken to exist between the reviewing parties, and to have arisen in the way mentioned in subsection (1), if the reviewing party who carried out the review considers the reviewable terms are not currently fair and reasonable.

(1) The review criteria are each of the following—

(a) the appropriateness of the reviewable terms for achieving a fair and reasonable balance between the interests of the reviewing parties;

(b) whether the reviewable terms impose conditions that—

(i) are unreasonably difficult to comply with; or

(ii) are not necessary and reasonable for the protection of the legitimate interests of a reviewing party;

(c) the consequences of complying with, or contravening, the reviewable terms and whether the consequences are unfairly harsh or beneficial to a reviewing party;

(d) whether the reviewable terms are appropriate for the scheme;

(e) the term of the engagement as service contractor and the period of the term remaining.

(2) The review criterion mentioned in subsection (1)(d) is to be applied having regard, in particular, to the nature, features and characteristics of the scheme.

(1) A member of a body corporate can not vote, whether personally or by proxy, on a motion about a review of a service contract or existing service contract for which the member is the service contractor or an associate of the service contractor.

(2) A following matter can not be a ground for terminating the contract or changing the service contractor’s term of engagement under the contract—

(a) the carrying out of a review under this division;

(b) a change in the terms of the contract as a result of the review or an order of a specialist adjudicator or QCAT;

(c) a dispute arising out of the review.

Division 8 Required transfer of letting agent’s management rights

Subdivision 1 Preliminary

This division applies to a community titles scheme if—

(a) it is not a community titles scheme in relation to which a serviced strata arrangement or scheme under the Corporations Act is in operation; and

(b) it is a community titles scheme for which the original owner control period has ended.

(1) Division 4 does not apply to the termination of a contract under this division.

(2) The provisions of a letting agent authorisation or service contract providing for its transfer or termination are void to the extent the provisions are inconsistent with this division.

Subdivision 2 Transfer of management rights

The body corporate may require the transfer of the letting agent’s management rights under this division based on either of the following grounds—

(a) the letting agent failed to comply with a code contravention notice;

(b) the body corporate reasonably believes the letting agent, after being given the notice, contravened a provision of the code of conduct for—

(i) letting agents; or

(ii) body corporate managers and caretaking service contractors.

Note—

See schedule 2 for the code of conduct for body corporate managers and caretaking service contractors and schedule 3 for the code of conduct for letting agents.

(1) The body corporate must, if required by ordinary resolution decided by secret ballot conducted in the way prescribed under the regulation module applying to the scheme, give the letting agent a signed notice under this section (a code contravention notice).

(2) The code contravention notice must state—

(a) that the body corporate believes the person has or is contravening a provision of the code of conduct for—

(i) letting agents; or

(ii) body corporate managers and caretaking service contractors; and

(b) the provision the body corporate believes has been or is being contravened; and

(c) details sufficient to identify the contravention; and

(d) the reasonable period within which the letting agent must remedy the contravention; and

(e) that the body corporate may, without further notice, give the letting agent a transfer notice if—

(i) the letting agent does not comply with the code contravention notice; or

(ii) the body corporate reasonably believes the letting agent, after being given the notice, has contravened a provision of a code mentioned in paragraph (a).

The letting agent must transfer the letting agent’s management rights for the scheme if—

(a) a ground exists for the body corporate to require the transfer; and

(b) the body corporate—

(i) by majority resolution decided by secret ballot conducted in the way prescribed under the regulation module applying to the scheme requires the transfer; and

(ii) gives written notice of the requirement (the transfer notice) to the letting agent.

(1) The letting agent must transfer the management rights—

(a) within the following period after the transfer notice is given to the letting agent—

(i) if section 147 does not apply—9 months;

(ii) if section 147 applies—11 months; and

(b) to a person, other than an associate of the letting agent, chosen by the letting agent and approved by the body corporate.

(2) For deciding whether to approve a person under subsection (1)(b), the body corporate—

(a) must act reasonably and as quickly as practicable; and

(b) may have regard only to the person’s—

(i) character; and

(ii) financial standing; and

(iii) competence, qualifications and experience.

(3) However, the body corporate must not—

(a) unreasonably withhold approval of the person; or

(b) require or receive a fee or other consideration for approving the person, other than reimbursement for legal expenses reasonably incurred by the body corporate in relation to the application for its approval.

Maximum penalty for subsection (3)—50 penalty units.

(4) If the letting agent transfers the management rights to a person who is not approved by the body corporate, the transfer is of no effect.

When the body corporate gives the transfer notice to the letting agent, the body corporate must give a copy of it to each person who is a financier for a contract of the letting agent under section 123.

(1) If the letting agent does not transfer the management rights as required under section 141, the letting agent must transfer the management rights—

(a) to a replacement letting agent chosen by the committee for the body corporate and named in a written notice given by the committee to the letting agent; and

(b) at the price stated in the notice; and

(c) within the period, of at least 2 months after the notice is given, stated in the notice.

(2) The price stated must be 1 of the following—

(a) the average of 2 valuations, obtained by the body corporate from 2 independent registered valuers, stating the value of the management rights;

(b) the highest bid for the management rights, excluding a bid by the letting agent or an associate of the letting agent, made at an auction—

(i) conducted at the request of the body corporate; and

(ii) of which at least 60 days notice was given;

(c) the highest amount tendered, excluding by tender by the letting agent or an associate of the letting agent, for the management rights after reasonable efforts made by the body corporate to market the management rights for at least 60 days.

(3) The letting agent must pay to the body corporate, from the proceeds of the sale, the reasonable costs incurred by the body corporate under subsection (2).

(1) This section applies to a service contract (the transferred service contract) transferred to a person (the transferee) under section 141 or 143.

(2) Unless the body corporate and transferee agree otherwise, the terms of the transferred service contract are—

(a) the terms applying to the service contract under subsection (3); or

(b) if paragraph (a) does not apply—the terms applying to the service contract immediately before the transfer (the existing terms).

(3) The terms of the transferred service contract are the existing terms as changed under a review advice about the contract if—

(a) the review advice states how the contract’s reviewable terms should be changed to ensure they are fair and reasonable; and

(b) the body corporate gave the letting agent a copy of the review advice as required under section 149 (1).

Subdivision 3 Termination and replacement of letting agent authorisation and service contract

If the letting agent does not transfer the management rights as required under section 143, the body corporate may terminate the letting agent’s authorisation under the regulation module applying to the scheme.

(1) This section applies if the remainder of the term of the letting agent’s authorisation (the transferred authorisation), including any rights or options of extension or renewal, is less than 7 years when transferred to a person (the transferee) under this division.

Example for subsection (1)—

If the authorisation was given for a term of 5 years with 4 rights of renewal of 5 years each and 5 years have expired, the remainder of the term is 20 years.

(2) On the transfer—

(a) the transferred authorisation and any service contract (the transferred service contract) forming part of the transferred management rights terminate; and

(b) the body corporate must—

(i) authorise the transferee to conduct a letting agent business for the scheme; and

(ii) if a service contract formed part of the transferred management rights—engage the transferee as a service contractor.

(3) The authorisation and engagement must be given for a term of 9 years starting immediately after the transfer.

(4) Subject to subsection (3)—

(a) the authorisation must be given on the terms applying to the transferred authorisation immediately before the transfer; and

(b) unless the body corporate and transferee agree otherwise, the engagement must be given on—

(i) the terms applying to the transferred service contract under subsection (5); or

(ii) if subparagraph (i) does not apply—the terms applying to the transferred service contract immediately before the transfer (the existing terms).

(5) The engagement must be given on the existing terms of the transferred service contract as changed under a review advice about the contract if—

(a) the review advice states how the contract’s reviewable terms should be changed to ensure they are fair and reasonable; and

(b) the body corporate gave the letting agent a copy of the review advice as required under section 149 (1).

Subdivision 4 Reviewing terms of letting agent’s service contract

(1) This section applies if—

(a) the letting agent’s management rights include a service contract; and

(b) when the body corporate passes the majority resolution mentioned in section 140, the body corporate also passes, by ordinary resolution, a motion (a review motion) that a review advice about the service contract be obtained.

(2) Within 1 month after the review motion is passed, the body corporate must obtain the review advice from an independent appropriate person.

Example of appropriate person for subsection (2)—

a person who, in the ordinary course of the person’s business, has knowledge of the functions and powers of service contractors and the remuneration for performing the functions and powers

(3) The review advice must be based on the review criteria stated in section 148.

(4) This section applies to the contract even if the contract also provides for either or both of the following—

(a) the letting agent’s engagement as a body corporate manager;

(b) the letting agent’s authorisation as a letting agent.

(1) The review criteria are each of the following—

(a) the appropriateness of the reviewable terms for achieving a fair and reasonable balance between the interests of the body corporate and the service contractor;

(b) whether the reviewable terms impose conditions that—

(i) are unreasonably difficult to comply with; or

(ii) are not necessary and reasonable for the protection of the legitimate interests of the body corporate or the service contractor;

(c) the consequences of complying with, or contravening, the reviewable terms and whether the consequences are unfairly harsh or beneficial to the body corporate or the service contractor;

(d) whether the reviewable terms are appropriate for the scheme;

(e) the term of the engagement as service contractor and the period of the term remaining.

(2) The review criterion mentioned in subsection (1)(d) is to be applied having regard, in particular, to the nature, features and characteristics of the scheme.

(1) Within 14 days after obtaining the review advice, the body corporate must give a copy of it to the letting agent.

(2) If requested by a prospective buyer of the letting agent’s management rights, the body corporate must give a copy of the review advice to the prospective buyer.

Subdivision 5 Disputes about transfer of management rights

A party to a dispute about the transfer, under this division, of a letting agent’s management rights may apply—

(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.

Division 9 Disputes about contractual matters

(1) This section applies to a dispute about a claimed or anticipated contractual matter about—

(a) the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or

(b) the authorisation of a person as a letting agent for a community titles scheme.

(2) A party to the dispute may apply—

(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.

Part 3 Financial and property management

Division 1 Financial management

(1) Subject to section 151, the financial management arrangements applying to a community titles scheme are those stated in the regulation module applying to the scheme.

(2) Without limiting subsection (1), the regulation module applying to a community titles scheme may provide for financial arrangements about the following—

(a) the budget of the body corporate;

(b) levying lot owners for contributions, including contributions of an interim nature for the period from the end of a financial year to 30 days after the annual general meeting for the next financial year;

(c) discounts and penalties relating to the payment of contributions;

(d) recovery of unpaid contributions;

(e) funds to be kept by the body corporate;

(f) powers and restrictions relating to borrowing;

(g) application of amounts in funds;

(h) spending limitations applying to the body corporate, and spending limitations applying to the committee for the body corporate;

(i) keeping accounts and preparing statements of accounts;

(j) auditing of statements of accounts by an auditor.

(3) To avoid doubt, it is declared that the financial management arrangements contained in a regulation module applying to a community titles scheme may impose obligations and limitations on both the body corporate (including the committee for the body corporate) and lot owners.

(1) This section applies to a financial institution account opened for a body corporate on or after the commencement of this section.

(2) The account must be opened with the consent, and in the name, of the body corporate.

(3) If the body corporate manager’s contract of engagement requires or authorises the body corporate manager or an associate of the body corporate manager to operate the account for the body corporate, the account must provide for it to be operated for the body corporate by any of the following—

(a) the body corporate manager or associate;

(b) the authorised members acting jointly.

(4) If subsection (3) does not apply, the account must provide for it to be operated jointly for the body corporate by the authorised members.

(5) If the body corporate gives the financial institution written notice in the approved form that the body corporate manager’s contract of engagement has ended—

(a) the financial institution must not allow the person or the person’s associate to operate the account; and

(b) the account is taken to provide for it to be operated for the body corporate by a person nominated by the body corporate and stated in the notice.

(6) In this section—

authorised members, for operating a financial institution account of the body corporate, means—

(a) for a community titles scheme in which all the lots are in identical ownership—

(i) the individual who is the owner; or

(ii) a nominee of the owner; or

(b) for a community titles scheme other than a small scheme or a specified two-lot scheme—at least 2 members of the committee for the body corporate who are authorised by the body corporate to operate the account; or

(c) for a small scheme—at least 1 member of the committee for the body corporate who is authorised by the body corporate to operate the account; or

(d) for a specified two-lot scheme—at least 1 person, other than a body corporate manager for the scheme or an associate of the manager, who is authorised by the body corporate, by a lot owner agreement, to operate the account.

Division 2 Property management

(1) The body corporate for a community titles scheme must—

(a) administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners; and

(b) comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.

(2) Nothing in this part, or in a regulation made under this part, stops—

(a) an item of personal property that is a body corporate asset from becoming part of the common property because of its physical incorporation with common property; or

(b) a part of common property from becoming a body corporate asset because of its physical separation from common property.

The body corporate for a community titles scheme must comply with the mail box and notice board requirements prescribed under the regulation module applying to the scheme.

(1) The body corporate for a community titles scheme may sell or otherwise dispose of common property in the way, and to the extent, authorised under the regulation module applying to the scheme.

(2) The body corporate may grant or amend a lease or licence over common property in the way, and to the extent, authorised under the regulation module applying to the scheme.

(1) The body corporate for a community titles scheme may grant an easement over the common property, or accept the grant of an easement for the benefit of the common property, in the way, and to the extent, authorised under the regulation module applying to the scheme.

(2) The body corporate may surrender an easement that is for the benefit of the common property, or accept the surrender of an easement over the common property, in the way, and to the extent, authorised under the regulation module applying to the scheme.

(1) The body corporate for a community titles scheme may acquire, and enter into agreements about the use of, real and personal property in the way, and to the extent, authorised under the regulation module applying to the scheme.

(2) This section does not apply to agreements about common property.

The body corporate for a community titles scheme may deal with (including dispose of) body corporate assets in the way, and to the extent, authorised under the regulation module applying to the scheme.

The body corporate for a community titles scheme may supply, or engage another person to supply, services for the benefit of owners and occupiers of lots in the way, and to the extent, authorised under the regulation module applying to the scheme.

Note—

A body corporate is not permitted to carry on a business—see section 96.

(1) The regulation module applying to a community titles scheme may provide for making improvements to the common property, including making improvements for the benefit of the owner of a lot included in the scheme.

(2) Without limiting subsection (1), the regulation module may include provisions about—

(a) who may make improvements; and

(b) the circumstances under which the improvements may be made; and

(c) the way the improvements may be made.

The regulation module applying to a community titles scheme may impose obligations about the condition in which lots included in the scheme must be maintained.

The regulation module applying to a community titles scheme may authorise the body corporate, in circumstances specified in the regulation module, to carry out work the owner or occupier of a lot is obliged to carry out, and to recover reasonable costs of carrying out the work from the owner of the lot as a debt.

The regulation module applying to a community titles scheme may authorise the body corporate to bring a proceeding under the Queensland Building and Construction Commission Act 1991 or another law to have remedied a defect in building work carried out for the owner of a lot included in the scheme.

(1) A person (an authorised person) authorised by the body corporate for a community titles scheme may enter a lot included in the scheme, or common property the subject of an exclusive use by-law, and remain on the lot or common property while it is reasonably necessary—

(a) to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or

(b) to carry out work the body corporate is authorised or required to carry out.

(2) The power of entry may be exercised—

(a) in an emergency—at any time, with or without notice of intended entry given to any person; and

(b) in other cases, subject to subsection (4)—

(i) for entry to the lot mentioned in subsection (1)—at a reasonable time after at least 7 days written notice of the intended entry has been given to—

(A) the owner of the lot; or

(B) if the owner is not in occupation of the lot—the occupier of the lot; and

(ii) for entry to the common property mentioned in subsection (1)—at a reasonable time after at least 7 days written notice of the intended entry has been given to—

(A) the owner of the lot to which the exclusive use by-law attaches; or

(B) if the owner of the lot mentioned in subsubparagraph (A) is not in occupation of the common property—the occupier of the common property; and

(iii) in compliance with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.

(3) If the scheme is other than a basic scheme, the power of entry to a lot or common property the subject of an exclusive use by-law conferred under this section includes power to enter the scheme land for a community titles scheme (the subsidiary scheme) that is a lot included in the scheme.

(4) If subsection (3) applies, the power to enter the scheme land for the subsidiary scheme may be exercised at a reasonable time after at least 7 days written notice of intended entry has been given to—

(a) the body corporate for the subsidiary scheme; and

(b) if scheme land to be entered is a lot that is not itself a community titles scheme—

(i) the owner of the lot; or

(ii) if the owner is not in occupation of the lot—the occupier of the lot; and

(c) if scheme land to be entered is common property the subject of an exclusive use by-law for the subsidiary scheme—

(i) the owner of the lot to which the exclusive use by-law attaches; or

(ii) if the owner of the lot mentioned in subparagraph (i) is not in occupation of the common property—the occupier of the common property.

(5) A person must not obstruct an authorised person who is exercising or attempting to exercise powers under this section.

Maximum penalty for subsection (5)—20 penalty units.

(1) Nothing in this Act prevents a body corporate for a community titles scheme from towing a motor vehicle from the common property for the scheme under another Act or otherwise according to law.

(2) If a motor vehicle owned or operated by the owner or occupier of a lot included in the scheme and parked in contravention of a by-law for the scheme is towed by the body corporate, the body corporate is not required to comply with a requirement under chapter 3, part 5, division 4.

(3) In this section—

motor vehicle see the Transport Operations (Road Use Management) Act 1995, schedule 4.

Part 4 Conduct of occupiers

(1) In this part—

occupier, of a lot included in a community titles scheme, includes—

(a) if there is no occupier of the lot, the owner of the lot; and

(b) if the lot is a subsidiary scheme—the body corporate for the subsidiary scheme.

(2) For this part, if a lot referred to is a community titles scheme, the reference includes a reference to the scheme land for the scheme.

The occupier of a lot included in a community titles scheme must not interfere, or permit interference, with support or shelter provided by the lot for another lot included in, or the common property for, the scheme.

Maximum penalty—100 penalty units.

The occupier of a lot included in a community titles scheme must not, either within or outside the lot, interfere, or permit interference, with utility infrastructure or utility services in a way that may affect the supply of utility services to another lot included in, or the common property for, the scheme.

Maximum penalty—100 penalty units.

(1) The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

(2) Without limiting subsection (1), the occupier contravenes this section if—

(a) the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property of the scheme; and

(b) an occupier of another lot or an invitee of the occupier of the other lot, or a person who is lawfully on the common property, is regularly exposed to the smoke or emission from the smoking product—

(i) in the other lot; or

(ii) on the common property.

Part 5 By-laws

Division 1 By-laws generally

(1) By-laws, for a community titles scheme, are provisions that appear in the community management statement under the heading of “BY-LAWS”.

(2) However, if the community management statement does not include provisions that are, or that purport to be, the by-laws for the scheme, the by-laws for the scheme are the provisions stated in schedule 4.

(1) The by-laws for a community titles scheme may only provide for the following—

(a) the administration, management and control of common property and body corporate assets;

(b) regulation of, including conditions applying to, the use and enjoyment of—

(i) lots included in the scheme; and

(ii) common property, including utility infrastructure; and

(iii) body corporate assets, including easement areas relevant to common property; and

(iv) services and amenities supplied by the body corporate;

(c) other matters this Act permits to be included in by-laws.

(2) If there is an inconsistency between a by-law and a provision (the other provision) of the community management statement that is not a by-law, the other provision, to the extent of the inconsistency, prevails.

(1) A by-law for a community titles scheme may prohibit or restrict the smoking or inhaling of all or some smoking products only on—

(a) all or part of—

(i) the common property of the scheme, other than common property an occupier of a lot may use under an exclusive use by-law; or

(ii) the scheme’s body corporate assets other than a body corporate asset an occupier of a lot may use under an exclusive use by-law; or

(b) all or part of an outdoor area of—

(i) a lot included in the scheme; or

(ii) the common property an occupier of a lot may use under an exclusive use by-law; or

(iii) a body corporate asset an occupier of a lot may use under an exclusive use by-law.

(2) To remove any doubt, it is declared that a by-law that prohibits or restricts the smoking or inhaling of all or some smoking products on any area mentioned in subsection (1) is not, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable.

(3) In this section—

inhale see the Tobacco and Other Smoking Products Act 1998, schedule.

outdoor area, of a lot, or of common property or a body corporate asset an occupier of a lot may use under an exclusive use by-law, includes any of the following areas—

(a) a balcony;

(b) a courtyard;

(c) a patio;

(d) a verandah.

smoke see the Tobacco and Other Smoking Products Act 1998, schedule.

(1) This section does not apply in relation to an animal that is a guide, hearing or assistance dog.

(2) A by-law must not—

(a) prohibit the keeping or bringing of an animal on a lot or the common property of the community titles scheme; or

(b) restrict the number, type or size of an animal that an occupier of the lot may keep or bring on the lot or common property for the scheme.

(3) However, a by-law may provide that an occupier must not, without the written approval of the body corporate for the scheme, or the committee for the body corporate—

(a) keep or bring an animal on the lot or the common property; or

(b) permit an invitee to keep or bring an animal on the lot or the common property.

(4) If a by-law requires the written approval of the body corporate for the scheme, or the committee for the body corporate, to keep or bring an animal on the lot or the common property, the body corporate, or the committee—

(a) must, after receiving a request for approval, within the period prescribed by the regulation module applying to the scheme decide whether to grant the approval; and

(b) may, in writing, grant the approval subject to conditions that are, in the circumstances, reasonable and appropriate; and

Examples of conditions that may in particular circumstances be reasonable—

1 The animal must be in a carry cage, in a pet pram or on a leash in order to limit the animal’s movement when in a lift in the scheme.

2 The animal’s waste must be disposed of in a way that does not unreasonably expose another occupier or the other occupier’s invitee to the odour or sight of the waste.

(c) must not unreasonably withhold approval.

(5) To remove any doubt, it is declared that the body corporate’s or the committee’s refusal to approve an owner’s or occupier’s request to keep or bring an animal on the lot or the common property on the grounds that no pets are allowed is unreasonable.

(6) The body corporate, or the committee, may refuse to grant approval under subsection (4) only if the body corporate, or the committee, is satisfied, on reasonable grounds, of any of the following matters—

(a) keeping the animal would pose an unacceptable risk to the health and safety of an owner or occupier of a lot because—

(i) the owner or occupier is unwilling or unable to keep the animal in accordance with reasonable conditions that address the risk; or

(ii) the risk could not reasonably be managed by conditions imposed on the keeping of the animal;

Example—

An owner or occupier of a lot has a severe allergy to a particular type of animal and it is not possible to impose a condition that would manage the person’s risk of exposure to the allergen.

(b) keeping the animal would contravene a law;

Example—

a local law that prohibits certain types of animals being kept at a lot or restricts the number of animals that may be kept at a lot

(c) the animal is a regulated dog under the Animal Management (Cats and Dogs) Act 2008;

(d) keeping the animal would unreasonably interfere with an occupier of another lot’s use and enjoyment of the lot or common property and the interference could not reasonably be managed by conditions imposed on the keeping of the animal;

(e) keeping the animal would unreasonably interfere with native fauna that live on, or visit, the scheme land and the interference could not reasonably be managed by conditions imposed on the keeping of the animal;

(f) the occupier does not agree to reasonable conditions proposed by the body corporate for keeping the animal;

(g) another matter prescribed under the regulation module applying to the scheme.

(7) Also, the body corporate’s approval may be withdrawn if the occupier does not comply with the conditions stated in the written notice given under subsection (4)(b).

Division 2 Exclusive use by-laws

(1) An exclusive use by-law, for a community titles scheme, is a by-law that attaches to a lot included in the scheme, and gives the occupier of the lot for the time being exclusive use to the rights and enjoyment of, or other special rights about—

(a) common property; or

(b) a body corporate asset.

(2) If an exclusive use by-law attaches to a lot that is another community titles scheme, the exclusive use or other rights are for the benefit of the other scheme.

(1) The common property or body corporate asset to which an exclusive use by-law for a community titles scheme applies must be—

(a) specifically identified in the by-law; or

(b) allocated—

(i) by a person (who may be the original owner or the original owner’s agent) authorised under the by-law to make the allocation (an authorised allocation); or

(ii) by 2 or more lot owners under a reallocation agreement (an agreed allocation).

(2) An exclusive use by-law that specifically identifies the common property or body corporate asset to which it applies, other than an exclusive use by-law contained in the first community management statement for the scheme—

(a) may attach to a lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new community management statement to incorporate the exclusive use by-law, or the lot owner votes personally in the resolution; and

(b) may stop applying to the lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new community management statement that does not incorporate the exclusive use by-law, or the lot owner votes personally in the resolution.

(3) If an exclusive use by-law authorises the allocation of common property or a body corporate asset for the purpose of the by-law—

(a) the by-law may attach to a lot on the basis of an authorised allocation only if the lot owner agrees in writing before the allocation of the common property or body corporate asset to which the by-law applies; and

(b) the by-law may stop applying to the lot only if the lot owner agrees in writing before—

(i) the allocation is revoked under the by-law (if the by-law provides for the revocation of an allocation); or

(ii) the passing of the resolution without dissent—

(A) consenting to the recording of the new community management statement that does not incorporate the exclusive use by-law; or

(B) in which the lot owner voted personally.

Before the registrar records a community management statement that includes an exclusive use by-law, the registrar may require the common property or body corporate asset the subject of the by-law to be identified in a plan, or in another way the registrar directs, to avoid doubt about the extent of the common property, or about the identification or extent of the body corporate asset, that is the subject of the by-law.

The regulation module applying to the scheme may make provision about—

(a) the inclusion of conditions in an exclusive use by-law (including conditions about payments to be made by the owner of the lot to which the by-law attaches); and

(b) obligations imposed on the owner of a lot to which the by-law attaches (including obligations that would otherwise be obligations of the body corporate); and

(c) authorisation given under an exclusive use by-law for the making of improvements; and

(d) recovery of amounts payable under an exclusive use by-law.

(1) An authorised or agreed allocation has no effect unless details of the allocation are given to the body corporate.

(2) Also, an authorised allocation has no effect unless—

(a) if paragraph (b) does not apply for the allocation—the allocation is made in the period (the base allocation period) ending 1 year after the recording of the relevant community management statement; or

(b) if a period (the extended allocation period) for making the allocation is stated in an order of an adjudicator under the dispute resolution provisions—the allocation is made in the extended allocation period.

(3) An order mentioned in subsection (2)(b)—

(a) may only state a period ending later than 1 year, and not later than 2 years, after the recording of the relevant community management statement; and

(b) may be sought or made before or after the base allocation period ends.

(4) If an order mentioned in subsection (2)(b) is made about an authorised allocation after the base allocation period ends, the base allocation period is taken never to have applied to the allocation for subsection (2).

(5) In this section—

relevant community management statement, for an authorised allocation, means—

(a) the community management statement that first includes the exclusive use by-law; or

(b) for a community titles scheme that is to be progressively developed—the new community management statement that replaces the existing community management statement.

(1) The body corporate must lodge a request to record a new community management statement (the first subsequent statement) showing—

(a) all authorised allocations made in the base allocation period; and

(b) all authorised and agreed allocations currently in place when the body corporate consented to the recording of the first subsequent statement.

(2) Also, if an extended allocation period applies for an authorised allocation, the body corporate must lodge a request to record a new community management statement (the second subsequent statement) showing—

(a) all authorised allocations made between the end of the base allocation period and the end of the extended allocation period; and

(b) all authorised and agreed allocations currently in place when the body corporate consented to the recording of the second subsequent statement.

(3) The request to record the first subsequent statement must be lodged within 3 months, or a longer time stated in an order of an adjudicator under the dispute resolution provisions, after the end of the base allocation period.

(4) If the body corporate is required to lodge a request to record a second subsequent statement, the request must be lodged within 3 months, or a longer time stated in an order of an adjudicator under the dispute resolution provisions, after the end of the extended allocation period.

(5) If the body corporate fails to lodge the request to record the first subsequent statement as required under this section, all authorised and agreed allocations made in the base allocation period cease to have effect.

(6) If the body corporate fails to lodge a request to record a second subsequent statement as required under this section, all authorised and agreed allocations made between the end of the base allocation period and the end of the extended allocation period cease to have effect.

(7) An order mentioned in subsection (3) or (4) relating to an authorised allocation may be sought or made before or after the 3 months mentioned in the subsection end and, if the order is made after the 3 months end, the allocation is taken to have remained in effect despite the 3 months having ended.

(1) Within 3 months, or a longer time stated in an order of an adjudicator under the dispute resolution provisions, after the taking effect of a further allocation, the body corporate must lodge a request to record a new community management statement showing all allocations currently in place when the body corporate consented to the recording of the new statement.

(2) If the body corporate fails to comply with subsection (1), the further allocation ceases to have effect.

(3) An order mentioned in subsection (1) may be sought or made before or after the 3 months mentioned in the subsection end, and if the order is made after the 3 months end, the allocation is taken to have remained in effect despite the 3 months having ended.

(4) In this section—

further allocation means an agreed allocation, other than an allocation shown in a subsequent statement under section 175 (1) or (2).

(1) An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset.

(2) An exclusive use by-law can not prohibit allocations under reallocation agreements.

(1) This section applies if—

(a) an exclusive use by-law is in force for a community titles scheme; and

(b) the owner of the lot to which the exclusive use by-law attaches stops being a body corporate manager, service contractor or letting agent for the scheme; and

(c) the exclusive use by-law is not for the continuing engagement or authorisation of the lot owner as a body corporate manager, service contractor or letting agent for the scheme; and

(d) there is a dispute about whether the exclusive use by-law should continue in force.

(2) The body corporate for the scheme may apply—

(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.

(3) The order must have regard especially to the interests of all owners of lots included in the scheme in the use and enjoyment of their lots and of the common property for the scheme.

(4) The order may include provision for either or both of the following—

(a) the lodging of a request for the recording of a new community management statement for the scheme, omitting the exclusive use by-law;

(b) the payment by the body corporate of compensation to the owner of the lot to which the exclusive use by-law attaches.

Division 3 Other matters about by-laws

A by-law comes into force on the day the registrar records the community management statement containing the by-law or a later date stated in the by-law.

(1) If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency.

Example for subsection (1)—

If a by-law for a community titles scheme purporting to give a body corporate manager, service contractor or letting agent exclusive use of common property is inconsistent with the regulation module applying to the scheme, the by-law is invalid to the extent of the inconsistency.

(2) Subsection (1) does not apply to an inconsistency between a by-law and a local law or PDA by-law if the inconsistency is about keeping animals on scheme land.

(3) If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.

(4) A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.

Examples—

1 A by-law can not prevent the owner of a lot from leasing or mortgaging a lot.

2 A by-law can not prevent the sale of a lot to a person under or over a particular age.

(5) A by-law must not discriminate between types of occupiers.

Example—

A by-law can not prevent a tenant from using a pool on the common property.

(6) A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.

(7) A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.

(8) A by-law must not include a provision that has no force or effect under the Building Act 1975, chapter 8A, part 2.

(9) To remove any doubt, it is declared that if a by-law for a scheme applies to a subsidiary scheme, a reference to a lot in this section includes a reference to a lot included in the subsidiary scheme.

(1) A person with a disability under the Guide, Hearing and Assistance Dogs Act 2009 who relies on a guide, hearing or assistance dog and who has the right to be on a lot included in a community titles scheme, or on the common property, has the right to be accompanied by a guide, hearing or assistance dog while on the lot or common property.

(2) A person mentioned in subsection (1) who is the owner or occupier of a lot included in a community titles scheme has the right to keep a guide, hearing or assistance dog on the lot.

(3) A by-law can not exclude or restrict a right given by this section.

Division 4 By-law contraventions

Subdivision 1 Contravention notices for schemes other than specified two-lot schemes

This subdivision applies to a community titles scheme other than a specified two-lot scheme.

(1) This section applies if the body corporate for a community titles scheme that is a basic scheme that is not included in a layered arrangement of community titles schemes reasonably believes that—

(a) a person (the person) who is the owner or occupier of a lot included in the scheme is contravening a provision of the by-laws for the scheme; and

(b) the circumstances of the contravention make it likely that the contravention will continue.

(2) The body corporate may, by notice (a continuing contravention notice) given to the person, require the person to remedy the contravention.

(3) If the continuing contravention notice is given following a request under section 185 (2), the body corporate must, within 14 days after receiving the request, advise the person who made the request that the continuing contravention notice has been given.

(4) The continuing contravention notice must state—

(a) that the body corporate believes the person is contravening a provision of the by-laws; and

(b) the provision the body corporate believes is being contravened; and

(c) details sufficient to identify the contravention; and

(d) the reasonable period within which the person must remedy the contravention; and

(e) that if the person does not comply with the notice the body corporate may, without further notice—

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or

(ii) make an application under chapter 6 for resolution of the dispute.

(5) The person must comply with the continuing contravention notice.

Maximum penalty—20 penalty units.

(6) However, the person does not commit an offence under subsection (5) if, when the continuing contravention notice is given to the person, the person is not contravening the provision mentioned in subsection (1)(a) in the way detailed for subsection (4)(c).

(1) This section applies if a body corporate for a community titles scheme in a layered arrangement of community titles schemes reasonably believes that—

(a) any of the following (each the person) is contravening a provision of the by-laws for the scheme that is binding on the person—

(i) an owner or occupier of a lot in the scheme;

(ii) an owner or occupier of a lot in another community titles scheme in the layered arrangement of community titles schemes;

(iii) another body corporate of a community titles scheme in the layered arrangement of community titles schemes; and

(b) the circumstances of the contravention make it likely that the contravention will continue.

(2) The body corporate may, by notice (a continuing contravention notice) given to the person, require the person to remedy the contravention.

(3) If the continuing contravention notice is given to the owner or occupier of a lot mentioned in subsection (1)(a)(ii), the body corporate giving the notice must give a copy of the notice to the body corporate for the community titles scheme that includes the lot.

(4) If the continuing contravention notice is given following a request under section 185 (2), the body corporate must, within 14 days after receiving the request, advise the person who made the request that the continuing contravention notice has been given.

(5) The continuing contravention notice must state—

(a) that the body corporate believes the person is contravening a provision of the by-laws; and

(b) the provision the body corporate believes is being contravened; and

(c) details sufficient to identify the contravention; and

(d) the reasonable period within which the person must remedy the contravention; and

(e) that if the person does not comply with the notice the body corporate may, without further notice—

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or

(ii) make an application under chapter 6 for resolution of the dispute; and

(f) other than for a notice given to a relevant person—how the body corporate is directly and materially affected by the contravention.

(6) The person must comply with the continuing contravention notice.

Maximum penalty—20 penalty units.

(7) However, the person does not commit an offence under subsection (6) if, when the continuing contravention notice is given to the person, the person is not contravening the provision mentioned in subsection (1)(a) in the way detailed for subsection (5)(c).

(8) In this section—

relevant person means—

(a) if the body corporate for a community titles scheme gives a contravention notice—an owner or occupier of a lot included in the scheme; or

(b) if the body corporate is a lot included in another community titles scheme and the body corporate gives a contravention notice—

(i) the body corporate for the other community titles scheme; and

(ii) an owner or occupier of a lot included in the other scheme.

(1) This section applies if the body corporate for a community titles scheme that is a basic scheme that is not included in a layered arrangement of community titles schemes reasonably believes that—

(a) a person (the person) who is the owner or occupier of a lot included in a community titles scheme has contravened a provision of the by-laws for the scheme; and

(b) the circumstances of the contravention make it likely that the contravention will be repeated.

(2) The body corporate may, by notice (a future contravention notice) given to the person, require the person not to repeat the contravention.

(3) If the future contravention notice is given following a request under section 185 (2), the body corporate must, within 14 days after receiving the request, advise the person who made the request that the future contravention notice has been given.

(4) The future contravention notice must state—

(a) that the body corporate believes the person has contravened a provision of the by-laws; and

(b) the provision the body corporate believes has been contravened; and

(c) details sufficient to identify the contravention; and

(d) that the person must not repeat the contravention; and

(e) that if the person does not comply with the notice the body corporate may, without further notice—

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or

(ii) make an application under chapter 6 for resolution of the dispute.

(5) The future contravention notice has effect for—

(a) 3 months after it is given to the person; or

(b) a shorter period mentioned in the notice.

(6) The person must comply with the future contravention notice.

Maximum penalty—20 penalty units.

(7) However, the person does not commit an offence under subsection (6) if, when the future contravention notice is given to the person, the person has not contravened the provision mentioned in subsection (1)(a) in the way detailed for subsection (4)(c).

(1) This section applies if a body corporate for a community titles scheme in a layered arrangement of community titles schemes reasonably believes that—

(a) any of the following (each the person) has contravened a provision of the by-laws for the scheme that is binding on the person—

(i) an owner or occupier of a lot in the scheme;

(ii) an owner or occupier of a lot in another community titles scheme included in the layered arrangement of community titles schemes;

(iii) another body corporate of a community titles scheme in the layered arrangement of community titles schemes; and

(b) the circumstances of the contravention make it likely that the contravention will be repeated.

(2) The body corporate may, by notice (a future contravention notice) given to the person, require the person not to repeat the contravention.

(3) If the future contravention notice is given to the owner or occupier of a lot mentioned in subsection (1)(a)(ii), the body corporate giving the notice must give a copy of the future contravention notice to the body corporate for the community titles scheme that includes the lot.

(4) If the future contravention notice is given following a request under section 185 (2), the body corporate must, within 14 days after receiving the request, advise the person who made the request that the future contravention notice has been given.

(5) The future contravention notice must state—

(a) that the body corporate believes the person has contravened a provision of the by-laws; and

(b) the provision the body corporate believes has been contravened; and

(c) details sufficient to identify the contravention; and

(d) that the person must not repeat the contravention; and

(e) that if the person does not comply with the notice while the notice is in effect the body corporate may, without further notice—

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or

(ii) make an application under chapter 6 for resolution of the dispute; and

(f) other than for a notice given to a relevant person—how the body corporate is directly and materially affected by the contravention.

(6) The future contravention notice has effect for—

(a) 3 months after it is given to the person; or

(b) a shorter period mentioned in the notice.

(7) The person must comply with the future contravention notice.

Maximum penalty—20 penalty units.

(8) However, the person does not commit an offence under subsection (7) if, when the future contravention notice is given to the person, the person has not contravened the provision mentioned in subsection (1)(a) in the way detailed for subsection (5)(c).

(9) In this section—

relevant person means—

(a) if the body corporate for a community titles scheme gives a contravention notice—an owner or occupier of a lot included in the scheme; or

(b) if the body corporate is a lot included in another community titles scheme and the body corporate gives a contravention notice—

(i) the body corporate for the other community titles scheme; and

(ii) an owner or occupier of a lot included in the other scheme.

(1) If, under this subdivision, the body corporate for a community titles scheme gives a contravention notice to a person who is not the owner of a lot included in the scheme, or the owner of a lot included in a scheme that is included in a layered arrangement of community titles schemes, the body corporate must give a copy of the notice to the owner of the lot.

(2) The copy of the notice must be given to the owner when, or as soon as practicable after, the notice is given to the person mentioned in subsection (1).

Subdivision 2 Contravention notices for specified two-lot schemes

This subdivision applies to a specified two-lot scheme.

(1) This section applies to a specified two-lot scheme if an owner of a lot included in the scheme (the complainant) reasonably believes that—

(a) a person (the person) who is the owner or occupier of a lot included in the scheme is contravening a provision of the by-laws for the scheme; and

(b) the circumstances of the contravention make it likely that the contravention will continue.

(2) The complainant may, by notice (a continuing contravention notice) given to the person, require the person to remedy the contravention.

(3) A complainant who gives a continuing contravention notice under subsection (2) must when, or as soon as practicable after, the notice is given to the person, also—

(a) give a copy of the notice to the body corporate; and

(b) if the notice is given to a person who is not the owner of a lot included in the scheme, give a copy of the notice to the owner of the lot.

(4) If the continuing contravention notice is given following a request under section 185 (3)(b)(i), the complainant must, within 14 days after receiving the request, advise the person who made the request that the continuing contravention notice has been given.

(5) The continuing contravention notice must state—

(a) that the complainant believes the person is contravening a provision of the by-laws; and

(b) the provision the complainant believes is being contravened; and

(c) details sufficient to identify the contravention; and

(d) the period (which must be reasonable in the circumstances) within which the person must remedy the contravention; and

(e) that if the person does not comply with the notice the complainant may, without further notice—

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or

(ii) make an application under chapter 6 for resolution of the dispute.

(6) The person must comply with the continuing contravention notice.

Maximum penalty—20 penalty units.

(7) However, the person does not commit an offence under subsection (6) if, when the continuing contravention notice is given to the person, the person is not contravening the provision mentioned in subsection (1)(a) in the way detailed for subsection (5)(c).

(1) This section applies to a specified two-lot scheme if an owner of a lot included in the scheme (the complainant) reasonably believes that—

(a) a person (the person) who is the owner or occupier of a lot included in the scheme has contravened a provision of the by-laws for the scheme; and

(b) the circumstances of the contravention make it likely that the contravention will be repeated.

(2) The complainant may, by notice (a future contravention notice) given to the person, require the person not to repeat the contravention.

(3) A complainant who gives a future contravention notice under subsection (2) must when, or as soon as practicable after, the notice is given to the person, also—

(a) give a copy of the notice to the body corporate; and

(b) if the notice is given to a person who is not the owner of a lot included in the scheme, give a copy of the notice to the owner of the lot.

(4) If the future contravention notice is given following a request under section 185 (3)(b)(i), the complainant must, within 14 days after receiving the request, advise the person who made the request that the future contravention notice has been given.

(5) The future contravention notice must state—

(a) that the complainant believes the person has contravened a provision of the by-laws; and

(b) the provision the complainant believes has been contravened; and

(c) details sufficient to identify the contravention; and

(d) that the person must not repeat the contravention; and

(e) that if the person does not comply with the notice the complainant may, without further notice—

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or

(ii) make an application under chapter 6 for resolution of the dispute.

(6) The future contravention notice has effect for—

(a) 3 months after it is given to the person; or

(b) a shorter period mentioned in the notice.

(7) The person must comply with the future contravention notice.

Maximum penalty—20 penalty units.

(8) However, the person does not commit an offence under subsection (7) if, when the future contravention notice is given to the person, the person has not contravened the provision mentioned in subsection (1)(a) in the way detailed for subsection (5)(c).

Subdivision 3 Other provisions

(1) This section applies if—

(a) a dispute exists between—

(i) the body corporate for a community titles scheme (the aggrieved body corporate) and the owner or occupier of a lot included in the scheme; or

(ii) the body corporate for a community titles scheme in a layered arrangement of community titles schemes (also the aggrieved body corporate) and another body corporate in the layered arrangement and the dispute relates to by-laws that are binding on both; or

(iii) the body corporate for a community titles scheme in a layered arrangement of community titles schemes (also the aggrieved body corporate) and an owner or occupier of a lot in a community titles scheme in the layered arrangement and the dispute relates to by-laws that are binding on both; and

(b) the dispute arises because the aggrieved body corporate reasonably believes—

(i) that—

(A) the owner or occupier has contravened a provision of the by-laws for the scheme; or

(B) the other body corporate in the layered arrangement of community titles schemes has contravened a provision of the by-laws that are binding on both; or

(C) the owner or occupier of a lot in a community titles scheme in the layered arrangement of community titles schemes has contravened a provision of the by-laws that are binding on both; and

(ii) the circumstances of the contravention make it likely the contravention will continue or be repeated.

(2) The body corporate may make an application under chapter 6 for resolution of the dispute only if the body corporate has given the owner or occupier, or other body corporate, a contravention notice for the contravention the subject of the dispute.

(3) This section is subject to section 186.

(1) This section applies if—

(a) a dispute exists between—

(i) the owner or occupier of a lot included in a community titles scheme (the complainant) and the owner or occupier of another lot included in the scheme (the accused person); or

(ii) the owner or occupier of a lot (also the complainant) included in a community titles scheme (scheme A) in a layered arrangement of community titles schemes and the owner or occupier of a lot included in another scheme (scheme B) in the layered arrangement (also the accused person) and the dispute relates to by-laws that are binding on both; and

(b) the dispute arises because the complainant reasonably believes that—

(i) the accused person has contravened a provision of the by-laws for the scheme that are binding on both the complainant and the accused person; and

(ii) the circumstances of the contravention make it likely the contravention will continue or be repeated.

(2) For a complainant who is the owner or occupier of a lot mentioned in subsection (1)(a), other than an owner of a lot in a specified two-lot scheme, the complainant may make an application under chapter 6 for resolution of the dispute only if—

(a) the complainant has, in the approved form, asked the accused person’s body corporate to give the accused person a contravention notice for the contravention the subject of the dispute; and

(b) the accused person’s body corporate does not advise the complainant, as required under section 182 (3), 182A (4), 183 (3) or 183AA (4), that the contravention notice has been given to the accused person.

(3) For a complainant who is the owner or occupier of a lot included in a specified two-lot scheme, the complainant may make an application under chapter 6 for resolution of the dispute only if—

(a) if the complainant is an owner of a lot included in the scheme—the complainant has given the accused person a contravention notice for the contravention the subject of the dispute; or

(b) if the complainant is an occupier of a lot included in the scheme—

(i) the complainant has, in the approved form, asked the owner of the lot they occupy to give the accused person a contravention notice for the contravention the subject of the dispute; and

(ii) the lot owner does not advise the complainant, as required under section 183C (4) or 183D (4), that the contravention notice has been given to the accused person.

(4) This section is subject to section 186.

(5) In this section—

accused person’s body corporate means the body corporate for the community titles scheme that includes the accused person’s lot.

owner or occupier, of a lot, does not include an owner that—

(a) is a body corporate that is the owner of a lot included in a community titles scheme in a layered arrangement of community titles schemes; and

(b) has given an accused person—

(i) a continuing contravention notice under section 182A (2) for a contravention the subject of the dispute; or

(ii) a future contravention notice under section 183AA (2) for a contravention the subject of the dispute.

(1) A body corporate involved in a dispute of a kind mentioned in section 184 (1) may make an application under chapter 6, without complying with section 184 (2), if—

(a) the requirement mentioned in subsection (3) is satisfied; or

(b) the dispute is incidental to an application by the body corporate for an order under section 281 (1)(a) or (b).

(2) The owner or occupier of a lot involved, as a complainant, in a dispute of a kind mentioned in section 185 (1) may make an application under chapter 6, without complying with section 185 (2) or (3), if—

(a) the requirement mentioned in subsection (3) is satisfied; or

(b) the dispute is incidental to an application by the complainant for an order under section 281 (1)(a) or (b).

(3) For subsection (1)(a) or (2)(a), the requirement is that—

(a) the body corporate, owner or occupier (the initiating party) reasonably believes—

(i) special circumstances apply for the contravention that is believed by the initiating party to have taken place and is the subject of the dispute; and

(ii) because of the special circumstances, it is necessary for the dispute to be resolved urgently; and

(b) the application is for an interim order of an adjudicator.

(4) For subsection (3), special circumstances apply for a contravention if the contravention—

(a) is likely to cause—

(i) injury to persons; or

(ii) serious damage to property; or

(b) is a risk to the health or safety of persons; or

(c) is causing a serious nuisance to persons; or

(d) for another reason, gives rise to an emergency.

A proceeding for an offence under this division may be started only by—

(a) for an offence under subdivision 1 —the body corporate that gave the continuing contravention notice or future contravention notice the subject of the proceeding; or

(b) for an offence under subdivision 2 —the owner that gave the continuing contravention notice or future contravention notice.

Part 6 Insurance

(1) The regulation module applying to a community titles scheme may require the body corporate to put in place insurance for the scheme.

(2) However, subsection (3) applies if a body corporate for a community titles scheme can not comply with the requirement under the regulation module applying to the scheme to insure for full replacement value—

(a) to the extent that a building is scheme land—each building in which is located a lot created under a building format plan of subdivision or a volumetric format plan of subdivision; or

(b) each building on a lot, created under a standard format plan of subdivision, that has a common wall with a building on an adjoining lot.

(3) The body corporate may make an adjudication application for an alternative insurance order.

(4) To avoid doubt, it is declared that—

(a) the body corporate may put in place for the scheme, in the way and to the extent the body corporate decides, additional insurance to—

(i) the insurance it is required to put in place under the regulation module applying to the scheme; or

(ii) any alternative insurance approved by an adjudicator (an alternative insurance order); and

(b) this part does not affect any obligation the body corporate may have under another Act to put insurance in place.

The body corporate for a community titles scheme has an insurable interest for the purpose of the insurance—

(a) it is required to put in place under the regulation module applying to the scheme; or

(b) put in place under an alternative insurance order.

(1) This section applies to a person who on the establishment of a community titles scheme becomes the original owner for the scheme.

(2) The person must ensure that when the scheme is established, policies of insurance that are required for the scheme under section 189 (1) are immediately in force for 12 months.

Maximum penalty—150 penalty units.

(3) If the regulation module requires a building to be insured for full replacement value, the original owner—

(a) must obtain from a quantity surveyor or registered valuer an independent valuation stating the replacement value of the building; and

(b) must ensure the policy of insurance for the building, taken out by the original owner as required under subsection (2), covers the full replacement value stated in the independent valuation.

Maximum penalty—150 penalty units.

(4) If the person does not take out the insurance required under subsection (2), the body corporate, or other entity that is required to take out insurance, may recover the cost of taking out the required insurance as a debt owing to the body corporate or other entity by the person.

(5) This section does not prevent the person from recouping the costs of the insurance for the balance of the period for which it was taken out from the buyers of lots included in the scheme, by agreement.

(1) This section applies if, for a community titles scheme—

(a) there is a registered mortgagee of a lot included in the scheme; and

(b) there is in place insurance—

(i) required to be put in place under the regulation module applying to the scheme; or

(ii) put in place under an alternative insurance order.

(2) The mortgagee’s interest in the lot mentioned in subsection (1)(a) is taken to be noted on the policy for the insurance mentioned in subsection (1)(b).