Exclusive use by-law

An exclusive use by-law is attached to a lot in a body corporate. It gives the owner of that lot the right to the exclusive use (or other special rights) to a part of the common property or a body corporate asset.

For example, an exclusive use by-law may give the owner of a unit an exclusive right to use the common property next to that unit as a courtyard, or part of the basement as a car space.

The part of the common property is usually identified in the by-law.

Assets can also be granted as exclusive use under the Body Corporate and Community Management Act 1997 (BCCM Act).

An exclusive use by-law under the BCCM Act cannot give rights to utility infrastructure that is common property or a body corporate asset.

Making an exclusive use by-law

The rules for making exclusive use by-laws are stricter than those for making other by-laws.

Making under the BCCM Act

Under the BCCM Act, an exclusive use by-law may be attached to a lot only if:

• the body corporate passes a resolution without dissent to record a new community management statement (CMS) that includes the by-law

and

• the owner of the lot that benefits from the by-law agrees in writing or votes personally on the resolution.

The body corporate must record the new community management statement that includes the exclusive by-law with Titles Queensland within 3 months after passing the resolution.

The by-law will only apply when the new statement is recorded.

Making under the BUGT Act

Under the Building Units and Group Titles Act 1980 (BUGT Act), an exclusive use by-law may apply to a lot only if:

• the body corporate passes a resolution without dissent

and

• the owner of the lot that benefits from the by-law agrees in writing.

The body corporate must record the exclusive use by-law with Titles Queensland within 3 months after passing the resolution.

The by-law will only apply when it is recorded on the registered survey plan.

Removing an exclusive use by-law

Once an exclusive use by law is recorded it is difficult to have it removed or changed.

Removing under the BCCM Act

An exclusive use by-law will only end if:

• the body corporate passes a resolution without dissent to record a new CMS that changes the by-law

and

• the owner of the lot that benefits from the by-law agrees in writing or votes personally on the resolution.

Removing under the BUGT Act

An exclusive use by-law will only end if:

• the body corporate passes a resolution without dissent to remove the by-law from the registered survey plan

and

• the owner of the lot that benefits from the by-law agrees in writing.

Reallocating exclusive use areas

Under the BCCM Act, two or more owners can decide to swap or reallocate the areas of common property or body corporate assets identified in the exclusive use by-laws applying to their lots. This is done by an agreed allocation.

Under the BUGT Act, an exclusive use by-law may authorise owners to swap or reallocate exclusive use areas from one owner to another.

Under both the BCCM and BUGT Acts, the owners must give details of the reallocation to the body corporate. Once the body corporate is told of the reallocation, the body corporate must record the reallocation at Titles Queensland.

A body corporate under the BCCM act must lodge a new CMS that includes the changes.

A body corporate under the BUGT Act must record the reallocation of exclusive use areas on the registered survey plan.

A general meeting resolution is not necessary in this case under either Act.

By-law conditions

For both the BCCM Act and the BUGT Act, the body corporate can impose conditions when giving exclusive use rights.

For example, the person who benefits from an exclusive use by-law might have to pay the body corporate a regular fee.

If an owner does not make the payments this becomes a body corporate debt. The body corporate can recover the debt from:

• the owner of the lot at the time of the debt

or

• any new owner of the lot if the debt is unpaid when the lot is sold.

Maintaining an exclusive use area

BCCM Act maintenance

The lot owner with exclusive use or other rights must maintain and pay any operating costs for the exclusive use area—unless the by-law says otherwise.

However, if the lot was created under a building format plan of subdivision and the by-law does not say otherwise, the owner is not responsible for:

• roofing membranes that are on part of the common property to which the by-law applies and give protection for other lots or common property
• maintaining in a structurally sound condition structural parts that are on the common property to which the by-law applies and were not built by or for the owner. These are
• foundation structures
• roofing structures providing protection
• essential supporting framework, including load-bearing walls.

An exclusive use by-law cannot make a lot owner responsible for the maintenance of any utility infrastructure (such as pipes, wiring or equipment) that is common property or a body corporate asset.

BUGT Act maintenance

The lot owner with exclusive use or other rights must maintain and pay any operating costs for the exclusive use area—unless the by-law says the body corporate continues to maintain the common property.

This can include maintenance of:

• lawns and gardens
• non-structural exterior walls (e.g. painting)
• fixtures and fittings, including any pipe, pole, wire, cable or duct
• doors, windows and other permanent covers over openings in boundary walls, including garage doors and their fittings.

Improving exclusive use areas

BCCM Act improvements

An exclusive use by-law may allow the owner who has the benefit of the by-law to make improvements to that area. This can include installing fixtures (like an air conditioner) or making other changes to the common property.

If the by-law does not give the right to make improvements, the owner can only make an improvement if the body corporate agrees.

The committee can approve improvements to exclusive use areas if the cost is $3,000 or less.

Improvements over $3,000 must be approved by ordinary resolution at a general meeting.

BUGT Act improvements

The BUGT Act does not say anything about owners’ improvements to an exclusive use area. An owner’s improvements are not regulated by the wording of the by-law.

Exclusive use areas are still part of common property. This means the body corporate can approve an owner’s improvements to common property by resolution without dissent.

The owner must maintain their improvement in good condition unless the body corporate decides to be responsible for maintenance.

Read about owners' improvement to common property under the BUGT Act.

Other exclusive use by-laws under other Acts

Restricted property by-laws

Community and precinct bodies corporate under the Mixed Use Development Act 1993 can make by-laws for restricted:

• community property
• precinct property.

Who restricted property by-laws apply to

Restricted community property by-laws for a community body corporate can apply to its members or lot owners.

Both community and precinct restricted property by-laws can apply to:

• a precinct body corporate
• the members or lot owners of a precinct body corporate
• the owners of building units plan or group titles plan lots in a subsidiary body corporate
• a lessee or occupier of a lot
• someone else while they are engaged in construction works in a future development area.

Making restricted property by-laws

The rules for making restricted property by-laws are stricter than those for making community or precinct property by-laws.

To make a restricted property by-law, a community or precinct body corporate can pass a resolution without dissent. It then has 3 months to give the minister a copy of the by-law for approval.

Restricted property by-laws start when:

• the minister approves the by-law (see the MUD Act for the current minister)
• the approval is published in the Queensland Government Gazette (the gazette)
• the by-law is recorded on the survey plan at Titles Queensland.

Wording of restricted property by-laws

A restricted property by-law must include:

• a description of the restricted property, if not described in another way (e.g. a plan)
• details of people entitled to use the restricted property

and

• the conditions for them to use the restricted property.

The by-law may also include information about:

• access and keys to the restricted property
• hours of use
• maintenance of the restricted property

and

• collecting levies from those entitled to use the restricted property.

Removing a restricted property by-law

The body corporate can change or remove a restricted property by-law in the same way that they made it—by passing a resolution without dissent.

Any changes would need to be approved by the Minister, published in the gazette and recorded at Titles Queensland.

Bodies corporate with no exclusive use provisions

There are no exclusive use or restricted property by-laws for higher level bodies corporate under the Integrated Resort Development Act 1987 and the Sanctuary Cove Resort Act 1985.