Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS - whether a notice purportedly issued on behalf of the body corporate alleging owners were breaching the by-laws and seeking removal of items was valid.

Act, ss 94, 100, 182-188

1. The letter from Body Corporate Choice to the owners of Lot 6 on 12 June 2025, purportedly sent on behalf of the Body Corporate for Regency Place, is void and of no effect.

[1] This application is about action take to enforce an alleged by-law contravention.

[2] On 12 June 2025 the body corporate manager (BCM) wrote to the owners of Lot 6 asserting they had items (including a shed, BBQ, furniture, and trampoline) on the common property and needed to remove them immediately. The letter cited By-law 3 about obstructions and By-law 7 about rubbish on common property. It said no items were allowed to be stored on common property and the items were to be removed by 19 June, or they would be removed and dumped, with the account sent to the owners.

[3] The applicant is one of owners of Lot 6. They responded to the letter disputing any by-law breach. They made unsuccessful attempts to engage with the BCM and committee about it.

[4] The applicant says the shed was installed with body corporate approval and it and the BBQ are under the Lot 6 roofline and so not on common property. They say the items are not rubbish or obstructing common property. They say the common property can be accessed at any time, restricted only by the boundary fence, but no other owner has used the area in 15 years. They say the area is not a fire escape route or used for any other purpose.

[5] The applicant subsequently queried whether the letter was validly issued. They also allege discrepancies in the application of the by-laws and the use of common property, claiming other owners place personal items on the common property. The applicant wants the BCM's letter to be declared void and of no effect.

[6] Regency Place community titles scheme 21972 (Regency Place) is a 16-lot scheme at Burleigh Waters. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as group titles plan 519.

[7] On 19 June 2025 I made the following interim order about this dispute:[1]

1. Pending a final determination on this application, the Body Corporate for Regency Place must not remove or dispose of the shed, BBQ, furniture, trampoline or any other property of the owners or occupiers of Lot 6 located at the rear of Lot 6.
2. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

[8] The applicant now seeks the following final order:

That the notice from Body Corporate Choice addressed to Mr MJ Dun & Ms JA West, owners of Lot 6 - CTS 21972, dated 12/06/2025 requesting the removal of the shed and bbq be declared to be void and of no effect.

[9] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] I am satisfied I have jurisdiction to decide this matter.[3]

[10] This application was lodged on 16 June 2025. The Commissioner's delegate sought clarification on some aspects of the application,[4] which was then amended.[5]

[11] As the applicant first sought interim orders, the Commissioner referred this application to me to decide whether the nature or urgency of the circumstances warranted an interim order.[6]

[12] At my direction, a member of the Commissioner's office contacted the BCM to ask if the body corporate had scheduled or planned a date to remove the disputed items, had engaged a contractor to undertake that work, or had responded to the applicant. The BCM was also advised that if the committee provided a written undertaking not to remove any items before the interim order was determined, I would invite it to make a submission about the interim order. The BCM noted some further communications but did not provide the other information sought and did not provide the requested undertaking.

[13] Given the circumstances, and as permitted by the Act, I proceeded to determine the interim order without further reference to the body corporate.

[14] After the interim order was determined, the application was referred to conciliation.[7] It seems the conciliation process was delayed as the body corporate was filling a committee vacancy. The parties participated in conciliation in September but did not reach an agreement.

[15] After conciliation, the applicant provided further information in support of the application.

[16] The Commissioner then invited submissions from the committee and all owners.[8] Five submissions were received, which the applicant obtained and responded to.[9]

[17] The application was referred to department adjudication.[10] I have now investigated the dispute, including reviewing the submitted material and seeking further information.[11]

[18] There are references in the submitted material to the conciliation. However, evidence of anything said or done about a dispute in a departmental conciliation session is inadmissible in a proceeding.[12] Accordingly I have not had regard to comments of that nature.

[19] The owners of Lot 1 support the applicant. They say the committee's request to remove the shed and BBQ is ridiculous. They say the items have not been a problem for 10 years, do not obstruct neighbours, and are not visible. The submitters object to the approach of the committee to the occupants of Lots 1 to 6. They say this has been a waste of everyone's time and energy rather than the committee adopting a commonsense approach.

[20] The owners of Lot 8 have no objection to the shed and BBQ in the current location.

[21] The owners of Lots 7 and 15 (apparently also committee members) each made submissions in similar terms. They say that when the letter was sent, there was a shed, BBQ, table and chairs, broken trampoline, broken swing frame with rope, and other smaller items on the common land behind Lot 6, preventing others using the land. They say the items were for exclusive and private use. But they say when the application was brought, all items other than the trampoline had been moved. They allege the shed and BBQ were on the grass before being moved under the eaves. The owners also claim the applicant said it would cost $3,000 to remove the items, which they assert is an admission that items were unusable rubbish. The submitters claim the trampoline is an obstruction to the fire hose and blocks the back door. They say there is no reason to rescind the letter because the details were true and correct at the time. They also dispute that other lots have items on common property. One also comments that if one lot uses the common property as their private back yard, that is not sharing common land if no one else can use the same space.

[22] The owner of Lot 13 refutes the applicant's suggestions that other lots have clotheslines and garden furniture on common property. They say they have never had that. They feel the trampoline should be moved as it poses a hazard if the fire hose is needed in an emergency.

[23] The response from the applicant includes the following:

1. They deny they have sought exclusive use of common property at the rear of Lots 1 to 6 formally or informally. Rather, they say they are entitled to reasonable use and enjoyment of the common property.
2. The area has only ever by accessed by the owners of Lots 1 to 6, due to its location and the scheme layout. No one has accessed or attempted to access the area since 2010 other than contracted service providers and occasionally the owners of Lot 5. They deny any obstruction of the use and enjoyment of the area or any attempt to restrict access or discourage use by others.
3. They acknowledge some items, including the trampoline, are on common property.
4. They deny saying the removal cost would be $3,000. Rather, they referred to the value of the items (including a shed with tools and equipment) that would be lost if it was dumped. They deny any admission that the items constitute rubbish.
5. They dispute that the trampoline is broken. They say the safety net was intentionally removed, the frame and mat are in working order, and the trampoline is regularly used by their child and other children within the scheme.
6. They deny moving the shed. It has concrete foundations beneath the roofline of the building and has never been placed on the grass.
7. The BBQ has always been located on paved areas under the roofline or near the boundary wall between Lots 5 and 6. It has never been located on the grass.
8. They dispute allegations regarding their conduct and rather say they have tried to engage in reasonable communication with the committee and to obtain information. They describe issues with obtaining information from the body corporate.

[24] After reviewing the submitted material, I wrote to the body corporate seeking further information. I sought evidence of any committee resolution directing the BCM to issue the disputed letter, whether it had issued or resolved to give a by-law contravention notice to the owners of Lot 6 about the items on common property, and whether it had resolved to remove items from common property or to recover the cost of doing so from the owners of Lot 6. I also sought clarification of the items the committee asserted were on common property at the time the disputed letter was sent, how the committee asserted those items breached the by-laws, the location of those items at the time, and any evidence of the items.

[25] A response from two committee members indicted they were not advised they needed any other resolution, and the notice was issued as instructed to the BCM. They indicated the BCM advised the correct letter and by-law, and the expectation that the body corporate would remove the items if the owners did not. They list the items on common property at the time and refer to photographs previously submitted. They say all items except for the trampoline were removed. They say the permanent placement of items on common land does not allow other owners to use the land if it is used for the exclusive use of own owner.

[26] The substantive issue raised by the order sought is the validity of the letter issued by the BCM purportedly on behalf of the body corporate. That leads to questions of whether the owners of Lot 6 had items on common property in breach of the by-laws, the authority to issue the letter, the body corporate's power to direct the owners of Lot 6 to remove items, and the power of the body corporate to remove the items if the owner did not. Where relevant, I will restate matters outlined in the reasons for the interim order.

[27] All owners own common property as tenants in common and the occupier of each lot enjoys the right to the use of the common property.[13] Prima facie, owners and occupiers do not require body corporate approval to use common property.

[28] But the right to use common property is not absolute. It is constrained, for example, by the statutory obligation on occupiers not to cause a nuisance, hazard, or unreasonable interference with use by others,[14] the requirement for approval to make improvements to common property,[15] and the by-laws.

[29] And unless they have been granted particular legal rights over common property, no occupier has greater rights to the use and enjoyment of any part of common property than another. Where an improvement to an area of common property that has not been allocated for exclusive use will have the effect of occupying or alienating the use of that area of common property for an unlimited period, the disposition of common property must be specifically authorised.[16] The right to the ongoing use of the common property to the exclusion of others is usually given by a grant of exclusive use,[17] or a lease or license.[18]

[30] But using common property on an ongoing basis or placing something on it \does not automatically constitute an obstruction of the lawful use the common property. It also does not necessarily amount to an impermissible attempt to subvert the common property for sole use. I do not accept the assertion from committee members that it is akin to stealing land. Whether disputed conduct is contrary to the legislation or the by-laws will be a factual question in the particular circumstances. Considerations may include the location, the nature of the use, and the nature and duration of any impact.

[31] There is considerable discussion about obstruction of common property in the case law.[19] I note, for example, that an adjudicator has previously commented that the temporary placement of a movable item of personal property on common property (in that case, a trampoline) was not an improvement to common property.[20] The adjudicator in that matter also agreed with previous decisions that placing and using a trampoline on common property could be a reasonable use of the common property by an owner or occupier.[21] In that case they said that unless the trampoline was creating a nuisance or a hazard, or otherwise breaching the Act or CMS, there was nothing further to be done about it.

[32] The BCM's letter cited By-laws 3 and 7 although it did not explain how it was asserted that the owners of Lot 6 were contravening those by-laws.

[33] Those by-laws, as recorded in the current CMS,[22] are:

An owner or occupier of a lot shall not obstruct lawful use of common property by any person.

An owner or occupier of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.

[34] Both by-laws only relate to conduct on common property. Regency Place is registered as a standard format plan of subdivision (formerly a group titles plan). Under this type of plan, boundaries are defined using a horizontal plane and references to marks on the ground.[23] Structures, such as exterior walls and fences, do not necessarily denote the boundary of lots in this type of plan. Lot 6 borders Lot 5 on the western side and is otherwise bounded by common property. It is not immediately clear from the plan were the rear boundary of Lot 6 is relative to the structure on the lot. I consider that it is not necessary for the determination of this application to determine the precise location of the disputed items relative to the boundary of Lot 6. But it would be surprising if the boundaries of Lot 6 did not at least include the area under the roofline of the residence.

[35] The BCM's letter said no items were allowed to be stored on common property. However, there is no by-law to that effect. There would only be a prohibition on storing items on common property if it offended a specific by-law or the legislation.[24]

[36] In regard to By-law 3, the CMS does not define obstruct or obstruction. The Act generally defines 'obstruct' to include 'hinder, resist and attempt to obstruct'. If any of the disputed items are within the boundaries of Lot 6 it is difficult to see how they could obstruct the use of the common property. For any items wholly or partly on common property, the question would be whether they were impeding or interfering with the use of common property.

[37] For By-law 7, there seems to be a claim that some items are rubbish, but the applicant disputes that. The items are clearly not dirt or dust. The meaning of 'other material' in the by-law would be limited to things of the same character as rubbish, dirt, and dust.[25]

[38] All owners and occupiers must comply with the CMS, including the by-laws.[26] The Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.[27] As with all of its functions, the body corporate must act reasonably in enforcing the by-laws.[28]

[39] The Act sets out a process for a body corporate to enforce by-laws. This includes first issuing a by-law contravention notice.[29] A valid by-law contravention notice must include:

1. that the body corporate believes the person is contravening a by-law
2. the provision the body corporate believes is being contravened
3. sufficient details to identify the contravention
4. a reasonable period in which to remedy the contravention (in the case of a continuing contravention) or that the person not repeat the contravention (in the case of a future contravention), and
5. that if the contravention notice is not complied with, the body corporate may start proceedings in the Magistrates Court for the failure to comply with the notice or make an application under chapter 6 of the Act for resolution of the dispute.

[40] The letter from the BCM to the owners of Lot 6 on 12 June 2025 does not fulfill the requirements for a valid by-law contravention notice. It does not identify how the disputed conduct is alleged to breach the cited by-laws. It also does not refer to the statutory processes for the matter to be progressed if the alleged contraventions are not remedied.

[41] Prima facie, if an alleged by-law contravention is not remedied after a valid by-law contravention notice has been issued, the options for the body corporate are either to lodge an application in the Commissioner's office (first for conciliation and then, if required, for adjudication) or to pursue proceedings in the Magistrates Court.

[42] If someone has placed something on common property without body corporate approval and in clear breach of the by-laws, and has ignored a by-law contravention notice requests to remove it, there may be scope for the body corporate to resolve to remove the item itself.[30] However, the body corporate must act reasonably in that regard.

[43] Here a valid contravention notice was not given, it is questionable whether the by-laws were ever breached (as I will comment on below), it is questionable whether any action was properly authorised by the body corporate (as I will discuss below), and only 7 days' notice of any issue was given. In those circumstances, I do not accept that it was reasonable for the body corporate to threaten to unilaterally remove and dispose of an owner's personal possessions at all or at the owner's expense, or to then proceed to do so.

[44] Individual committee members and the BCM do not have the unilateral authority to act or make decisions for a body corporate. A committee can make decisions for the body corporate, except on a restricted issue.[31] But committee decisions must be made and communicated in the way provided for in the regulations.[32] And the committee must act reasonably in making decisions.[33]

[45] It appears there were only 2 committee members at the time the disputed letter was issued.[34] Those committee members indicate they instructed the BCM to issue the disputed letter. However, the body corporate has not provided evidence of any resolutions passed by the committee at a properly convened committee meeting or by vote outside a committee meeting about the matter or of any such resolutions being communicated to owners in the minutes of a meeting or the record of a resolution.

[46] If the committee members intended the BCM to issue a by-law contravention notice (albeit that the letter was not sufficient for that purpose), the body corporate has not evidenced that it made a valid decision to do so. The body corporate has similarly not evidenced that the committee resolved that the body corporate would remove and dump the disputed items if the owners of Lot 6 did not, or to engage a contractor to do so, or to incur any expenditure on doing so, or charge the lot owners for any costs incurred. The committee could not act without such resolutions. I consider there was a wholesale failure of the committee to resolve to issue the letter or to do any of the things threatened in the letter.

[47] And if the committee had properly resolved take the actions threatened in the letter, as discussed above I consider those actions would have been unreasonable in the circumstances. Accordingly, I do not consider it would have been reasonable for the committee to resolve to issue a letter that threatened such things.

[48] As the issue in this application is whether the disputed letter should be invalidated, and not whether the owners of Lot 6 were in breach of the by-laws at the time the letter was sent, it is not necessary to make any finding on whether the owners were actually in breach of the by-laws to decide this application. However, in considering the validity of the body corporate's actions, it is also relevant to the evidence that the committee members purportedly relied on in apparently forming the view that the by-laws were being breached.

[49] The disputed letter referred to 'items' on common property, including a shed, BBQ, furniture and trampoline.' In seeking clarification, the committee asserted the items on the common property at the time the letter was issued were "...a broken unusable trampoline, bbq, shed, 6 seater table, 6 chairs, broken remains of swing frame, without the swing."

[50] Despite my request, the committee's response does not explain how each item was said to breach either By-law 3 or By-law 7, except for generally asserting that their placement on shared common land does not allow anyone else to use the land, and referring to previously submitted photographs.[35] The committee says all the disputed items other than the trampoline were removed, although that is not necessarily clear from the submitted material.

[51] From the limited information provided, it is not immediately apparent that the committee had any cogent evidence of a breach of By-laws 3 or 7 when the disputed letter was sent.

[52] For By-law 3, as note above it is not the case that personal items can never be placed, left, or stored on common property under the legislation or the current by-laws. But I will comment on each of the items listed by the committee in regard to By-law 3.

[53] The photographs submitted by the applicant and a committee member show a small metal shed on a concrete slab under the roofline of the residence. The committee and opposing submissions do not appear to dispute that location is within the boundaries of the lot. They do not appear to challenge the applicant's claim the shed was previously approved. There is an assertion that the shed was previously on the grass (apparently next to a side fence) and then moved, but that claim is not substantiated. The applicant denies it. And none of the information provided gives any indication that the shed could be obstructing any person's use of the common property if anyone else sought to use the area.

[54] The submitted photographs show a large, covered BBQ under the roofline next to the shed. Prima facie, that location is within the boundaries of the lot. And even if the BBQ was temporarily moved out on the pavers or grass on common property when in use, it is not clear why that would not be a reasonable use of common property or would obstruct others.

[55] The submitted photographs show a stack of plastic outdoor chairs and what appears to be the top of a round outdoor table largely under the roofline of the residence adjacent to the boundary with the neighbouring lot. If those items protrude onto common property, it is not clear how they obstruct anyone else's use of common property. If the furniture was temporarily placed onto the pavers or grassed area of common property for use, again that may simply be a reasonable use of common property. No evidence has been provided that it has or would obstruct the use of the area by others.

[56] The photographs show what appears to be the metal frame of a swing on the other side of the area, near the back fence. There is no indication that it is fixed to the ground. It does not appear to be in a pathway. While that area is clearly common property, if the area is not used by others, it is not clear how the swing would obstruct the use of common property.

[57] The item which appears to be of the most concern is the trampoline. The photographs provided by the applicant and in the submissions shows a round trampoline on a paved area adjacent to the rear wall of the Lot 6 and the boundary wall with the neighbouring Lot 5. Again, there is nothing to indicate the trampoline is fixed to the common property. Given its size and location, it has potential to obstruct the use of the common property by others. But no evidence has been provided that it actually does. No evidence has been provided that other residents want to use the paved area behind Lot 6 or are unable to do so because of the trampoline.

[58] The submissions also claim the trampoline obstructs the use of a fire hose and blocks the use of the rear door of Lot 6 in the event of a fire. These claims are not explained or substantiated. However, if the body corporate has received explicit advice from an appropriately qualified professional that the trampoline is a hazard or otherwise contravenes any safety requirements and must be moved or removed, it should provide that advice to the owners of Lot 6 who should act in accordance with the advice.

[59] The information provided in respect of this application does not evidence that the owners of Lot 6 have alienated common property for their exclusive use. It is not immediately evident that the committee had evidence at the time the disputed letter was issued that the owners of Lot 6 were obstructing the use of the common property contrary to By-law 3.

[60] Having regard to By-law 7, nothing submitted by the parties shows that any of the disputed items were 'rubbish'. The photographs do not show the trampoline or swing frame to be broken. And even if something was broken, that does not mean it is rubbish because it could be repaired. The committee's claim that the trampoline is rubbish appears to have been inferred from the applicant's reference to the cost of the removal of the disputed items. However, that was apparently not said until after the disputed letter was sent. And the applicant says they were referring to the value of the property that would be lost if it was dumped, and not the cost of dumping the items. Moreover, they confirm the trampoline is function and being used.

[61] At the time the disputed letter was sent, it does not appear the committee had any evidence of a breach of By-law 7. If the trampoline remains on common property, there is no evidence that it would contravene the terms of By-law 7.

[62] To the extent that in June 2025 the body corporate believed the owners of Lot 6 had items on common property in breach of the by-laws, it did not follow the statutory processes required for a body corporate to pursue an alleged by-law breach. Moreover, it is evident the committee did not follow the statutory processes for making or communicating any decisions about any actions to be taken about the alleged by-law breach. Furthermore, in all the circumstances, I consider that issuing the letter of 12 June 2025 including its threats to remove and dispose of the owners' property and charge them to do so was unreasonable. I will make an order declaring the letter has no effect.

[63] It appears from the submitted material that there are many issues of concern at this scheme, including body corporate decision-making, record-keeping, the use of common property, and the enforcement of the by-laws. Those matters are beyond the scope of this application for me to consider or comment on. However, I am concerned from the material submitted in relation to this dispute that some committee members may not have the level of understanding of the legislation or the by-laws necessary to undertake their role. While volunteer committee members do not need to be experts in body corporate administration, and can have regard to information provided by their BCM, under their code of conduct they must have a commitment to acquiring an understanding the Act relevant to their role.[36] I would encourage all committee members and owners to utilise the numerous resources of the Commissioner's office to better inform themselves as to the rights and responsibilities of the body corporate, owners and occupiers.

[1] Regency Place [2025] QBCCMCmr 214

[3] See sections 227, 228, 276 and Schedule 5 of the Act

[15] Section 187 of the Standard Module

[16] Noting in particular Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 and Dansur v Body Corporate for Cairns Aquarius CTS 1439 & Anor [2022] QCATA 15

[18] Section 184 of the Standard Module

[19] See for example Redgums Two [2024] QBCCMCmr 451 which details some decisions.

[20] Mt. Warren Townhouses No. 3 [2016] QBCCMCmr 119, paras 26 to 27

[21] Mt. Warren Townhouses No. 3 [2016] QBCCMCmr 119, para 25 and citing Beachwood Villas [2004] QBCCMCmr 661 and Hatlowe Heights [2010] QBCCMCmr 353

[22] Recorded 10 June 1999, Titles dealing number 703387406

[23] Section 48B of the Land Titles Act 1994

[24] For example, section 167 of the Act or section 187 of the Standard Module

[25] Under the ejusdem generis rule of statutory interpretation, where a list of specific terms is followed by a general term, the general term is limited to the category of items established by the specific terms.

[28] Noting section 94(2) and 100(5) of the Act

[30] I note the powers given to the body corporate in section 212 of the Standard Module

[31] Sections 100(1) and (2) of the Act

[32] Chapter 3, part 4 of the Standard Module

[34] Pursuant to section 9(4) of the Standard Module, the committee should have at least 3 voting members.

[35] I am unclear if the committee believes it has submitted any photographs or evidence other than in response to the invitation to make a submission on this application, or in response to my investigations request (for example through the conciliation process). I have not been provided with any such other material and, having regard to the requirements of procedural fairness and the inadmissibility of conciliation material, I could not consider any such other material.

[36] Schedule 1A of the Act (pursuant to section 101B of the Act), particularly section 1