Part 5By-laws

Part 5—By-laws 34—By-laws (1) The first by-laws of a community scheme are the by-laws filed with the community plan by the Registrar-General when depositing the plan in the Lands Titles Registration Office. (2) The by-laws of a community scheme must— (a) be in a form approved by the Registrar-General; and (b) provide for the administration, management and control of the common property; and (c) regulate the use and enjoyment of the common property; and (d) regulate the use and enjoyment of the community lots to the extent necessary to give effect to the scheme description; and (e) be endorsed with a certificate, in the form prescribed by regulation, from the person who prepared the by‑laws certifying that the by‑laws have been correctly prepared in accordance with this Act. (3) A by-law may also— (a) regulate— (i) the position, design, dimensions, methods and materials of construction and external appearance of buildings or other improvements on community lots; or (ii) the maintenance and repair of buildings or other improvements on community lots; or (iii) landscaping, including the establishment, care and maintenance of lawns, gardens and other areas on community lots; or (b) impose requirements or restrictions relating to the appearance of community lots or buildings or other improvements situated on community lots; or (c) regulate the use and enjoyment of community lots in order to prevent interference with the use and enjoyment of other lots; or (ca) authorise or require the community corporation to act as agent for the owners of community lots in arranging policies of insurance; or (d) regulate such other matters as are permitted by this Act to be regulated by by‑laws; or (e) impose a penalty, not exceeding the prescribed amount, for contravention of, or failure to comply with, a by-law. (4) A by-law may confer discretionary powers on the community corporation or any other person. (5) A by-law may apply to a particular lot or lots, to a class or classes of lots, or to lots generally. (6) The following provisions apply in relation to a penalty imposed on a person for contravention of, or failure to comply with, a by‑law: (a) the penalty is (despite section 29 of the Acts Interpretation Act 1915) payable to the community corporation in accordance with this subsection; (b) subject to the making of an application under paragraph (e), the penalty is payable by the person on the date specified for payment in a notice served by the corporation on the person; (c) the notice must— (i) be in writing in the form prescribed by regulation; and (ii) specify the amount of the penalty payable and a date for payment (being not less than 60 days after the notice is served); (d) the penalty payable under the notice is recoverable by the community corporation as a debt and, in the case of a notice served on the owner of a community lot, may be recovered by the community corporation as if it were a contribution payable to the community corporation under section 114 (and interest will be payable on the penalty amount in the same way as if it were such a contribution); (e) the person may, within 60 days after service of the notice, apply to the Magistrates Court for revocation of the notice and the Court must grant the application if either— (i) the Court is not satisfied that the person committed the contravention or failure alleged in the notice; or (ii) the Court is satisfied that the contravention or failure alleged in the notice is trifling; (f) the community corporation is a party to an application under paragraph (e) and bears the onus of proving, on the balance of probabilities, that the person committed the contravention or failure alleged in the notice; (g) if an application is made in accordance with paragraph (e), the penalty specified in the notice is not payable unless the application for revocation is withdrawn or otherwise discontinued by the applicant or is dismissed or refused by the Court (and, in such a case, the penalty will be payable on the date on which the application is so withdrawn, discontinued, dismissed or refused or on the date for payment specified in the notice, whichever occurs later). (7) A person's contravention of, or failure to comply with, by‑laws will, for the purposes of this section, be regarded as trifling if, and only if, the person establishes that the circumstances surrounding the commission of the contravention or failure were such that he or she ought to be excused from the imposition of a penalty on the ground that— (a) there were compelling humanitarian or safety reasons for the conduct that allegedly constituted the contravention or failure; or (b) the person could not, in all the circumstances, reasonably have averted committing the contravention or failure; or (c) the conduct allegedly constituting the contravention or failure was merely a technical, trivial or petty instance of a contravention of or failure to comply with the relevant by‑laws. (8) The regulations may make further provision in relation to the enforcement of by‑laws. (9) In this section— prescribed amount, in relation to a penalty imposed under by‑laws of a community scheme, means— (a) if the community scheme only includes lots that are used, or are intended to be used, solely or predominantly for business or commercial purposes—$2 000; or (b) in any other case—$500. 35—By-laws may exempt corporation from certain provisions of Act (1) The by-laws of a community scheme that does not include more than two community lots may exempt the community corporation from one or more of the following requirements of the Act— (a) the requirement to hold annual general meetings (except the first statutory general meeting); (b) the requirement to prepare accounting records of the corporation's receipts and expenditure and to prepare an annual statement of accounts; (c) the requirement to have the annual statement of accounts audited; (d) the requirement to establish administrative and sinking funds; (e) the requirement to maintain a register of the names of the owners of the community lots. (2) The by-laws of a community scheme that does not include more than three community lots may exempt the community corporation from the requirement to maintain a register of the names of the owners of the community lots. 36—By-law as to the exclusive use of part of the common property (1) A by-law may confer on the occupier for the time being of a community lot (or the occupiers of a group of lots) the exclusive right to use a specified part of the common property for the purpose or purposes stated in the by-law. (2) Where the owner of the lot is— (a) a secondary corporation, the by-law will, subject to any restriction or limitation expressed in the by-law, operate for the benefit of the occupiers of the secondary lots; and (b) a tertiary corporation, the by-law will, subject to any restriction or limitation expressed in the by-law, operate for the benefit of the occupiers of the tertiary lots. (3) The by-law— (a) may impose conditions in relation to the use of that part of the common property; and (b) may impose requirements on the owner or occupier of the lot; and (c) without limiting paragraph (b), may require the owner of the lot to pay a fee (whether periodically or not) to the community corporation or to the owner or owners of another lot or lots. (4) The occupier cannot erect a building or install a fixture on the part of the common property of which he or she has exclusive use or alter that part of the common property in any other way without the approval of a special resolution of the corporation. (5) A community corporation cannot make a by-law under this section without the written consent of the owner of the lot (or the owners of the group of lots) to which it relates. (6) The benefits of a by-law under this section apply for the benefit of subsequent occupiers of the lot or lots concerned and the obligations imposed by a by-law under this section attach to subsequent owners and occupiers of the lot or lots concerned. (7) The fee referred to in subsection (3)(c) may be recovered as a debt and the owner of the lot when the fee became payable and the succeeding owners of the lot are jointly and severally liable for payment of the fee. 37—Restrictions on making of by-laws (1) Subject to subsection (2), a by-law cannot— (a) prohibit or restrict the transfer, transmission, leasing (including the granting of a right of occupation) or mortgaging of, or other dealing with, a lot; or (b) impose a monetary obligation on the owner or occupier of a lot except where the by-law provides for the exclusive use of part of the common property; or (c) prevent access by the owner or occupier or other person to a lot; or (d) prevent an occupier of a lot who has a disability from keeping a relevant animal on the lot or restrict the use of a relevant animal by the occupier if the relevant animal is trained to assist the occupier in respect of the disability; or (e) prevent a visitor to the community parcel who has a disability from using a relevant animal trained to assist the visitor in respect of the disability. (2) A by-law may— (a) prohibit or restrict the owner of a lot from leasing or granting rights of occupation in respect of the lot for valuable consideration for a period of less than 2 months; or (b) impose a monetary obligation on the owner of a lot in relation to the payment of an insurance premium, where the by‑laws authorise or require the community corporation to act as agent for the owner in arranging the policy of insurance. (3) In this section— assistance animal has the same meaning as in the Equal Opportunity Act 1984; relevant animal means an assistance animal or a therapeutic animal; therapeutic animal has the same meaning as in section 88A of the Equal Opportunity Act 1984. 38—Certain by-laws may be struck out by Court (1) A by-law that— (a) reduces the value of a lot; or (b) unfairly discriminates against the owner of a lot, may be struck out by order of the Magistrates Court or the District Court on an application made under Part 14. (2) An application referred to in subsection (1) can only be made by a person who was an owner of the lot when the by‑law came into force and must be made within 3 months after the person (or either or any of the owners where the lot is owned by 2 or more persons) first knew, or could reasonably be expected to have known, that the by‑law had been made. (3) For the purposes of this section, a reference to an owner of a lot includes a person who has contracted to purchase the lot. 39—Variation of by-laws (1) Subject to section 87(2), by-laws may be varied by special resolution of the community corporation. (2) Within 14 days after the passing of a resolution varying the by-laws or the making of an order by a court varying a by-law, the corporation must lodge with the Registrar‑General— (a) a copy of the by-laws as varied; and (b) a copy of the resolution or order; and (c) the fee prescribed by regulation. (3) The Registrar-General may extend the period for lodgement in the case of variation of the by-laws by a court order but not in the case of variation by resolution. (4) In the case of variation of the by-laws by resolution, the corporation must provide evidence to the satisfaction of the Registrar-General that the variation was made by a special resolution of the corporation. (5) Copies of the resolution and the by-laws as varied must be certified in accordance with the regulations. (5a) The certified copy of the by‑laws must be endorsed with a certificate, in the form prescribed by regulation, from the person who prepared the by‑laws or an officer of the community corporation certifying that the by‑laws have been correctly prepared in accordance with this Act. (6) If the requirements of this Part are satisfied, the Registrar-General must file the certified copy of the by-laws with the plan of community division in substitution for the copy previously filed with the plan. (7) If a community corporation fails to comply with the requirements of this section in relation to the variation of the by-laws by a court order, a member of the corporation may comply with them on its behalf. 40—Date of operation of by-laws (1) The first by-laws of a community corporation come into operation when the plan of community division is deposited in the Lands Titles Registration Office. (2) A resolution or court order varying by-laws comes into operation when the certified copy of the by-laws as varied is filed with the community plan by the Registrar‑General. 41—Invalidity of by-laws (1) Subject to this section, by-laws are invalid to the extent to which they are inconsistent with— (a) this Act or any other Act or subordinate legislation made under this or any other Act; or (b) the scheme description filed with the community plan; or (c) a development contract filed with the community plan; or (d) a development contract of a secondary or tertiary scheme that comprises part of the community scheme to which the by-laws relate; or (e) in the case of the by-laws of a secondary scheme— (i) the scheme description of the primary scheme; or (ii) the by-laws of the primary scheme; or (f) in the case of the by-laws of a tertiary scheme— (i) the scheme descriptions of the primary or secondary scheme; or (ii) the by-laws of the primary or secondary scheme. (2) A by-law will be taken to be inconsistent with a scheme description, the by-laws of another scheme or a development contract if, and only if, there are no circumstances in which the by-law can operate consistently with the scheme description, by-laws or development contract.1 1 For instance if the scheme description provides that the community lots will be used for residential purposes without specifying the kinds of residential use, the by-laws may prohibit some kinds of residential use such as flats or boarding house accommodation but cannot prohibit all kinds of residential use. 42—Application of council by-laws The by-laws of a council that apply to, or in relation to, an act or activity in a public place but not on private property do not apply in those parts of a community parcel to which members of the public have access and a scheme by-law is not invalid for inconsistency with such a council by-law. 43—Persons bound by by-laws (1) The following persons are bound by the by-laws of a community scheme— (a) the community corporation; (b) the owners and occupiers of the community lots and the development lot or lots (if any) comprising the scheme; (c) persons entering the community parcel. (2) If the by-laws are the by-laws of a primary scheme and a primary lot is divided by a secondary plan or a primary lot is divided by a secondary plan and a lot created by that plan is divided by a tertiary plan, the following persons are also bound by the by‑laws— (a) the secondary corporation and (where applicable) the tertiary corporation; (b) the owners and occupiers of the community lots and the development lots (if any) created by the secondary plan and (where applicable) the tertiary plan. (3) If the by-laws are the by-laws of a secondary scheme and a secondary lot is divided by a tertiary plan, the tertiary corporation and the owners and occupiers of the community lots and the development lots (if any) created by the tertiary plan are also bound by the by-laws. 44—Availability of copies of by-laws (1) A community corporation must make up-to-date copies of the by-laws available for inspection or purchase by— (a) owners and occupiers of lots and (where applicable) of secondary and tertiary lots; and (b) persons considering purchasing a lot referred to in paragraph (a) or entering into any other transaction in relation to such a lot. (2) The inspection of by-laws must be free of charge and a fee charged for the purchase of by-laws must not exceed the fee prescribed by regulation. (3) The Registrar-General must make copies of by-laws filed with plans of community division available for purchase by members of the public at the fee prescribed by regulation. 45—By-laws need not be laid before Parliament or published in Gazette Sections 10 and 11 of the Subordinate Legislation Act 1978 do not apply to by-laws under this Part.