A change to the by-laws may come about because the committee realizes the by-laws are outdated and they want them to be reviewed and updated by a solicitor. Alternatively a change to the by-laws might come about because some areas of common property are to be allocated to lot owners for their exclusive use, for example, storage areas, car parks or courtyards. In either case, a change to the by-laws means the Body Corporate must first approve the new by-laws in general meeting and must then cause a new community management statement (CMS) containing the by-laws to be registered in the Department of Natural Resources, Mines and Energy (DNRME) within three (3) months of the date of the meeting wherein the approval was obtained.
What type of Body Corporate approval is required to change the by-laws?
A special resolution is required to be obtained in general meeting to change the by-laws, unless the by-laws include a new (or amended) exclusive use by-law. In that case, a resolution without dissent is required.
For the giving of consent, the Body Corporate need not have before it the actual new CMS. However, the motion must contain sufficient particulars so that the new CMS when lodged in DNRME is consistent with the approval (lest the lodged statement be invalid to the extent of any inconsistency).
In practical terms, this means that for a new set of by-laws, the motion would contain the exact new set of by-laws in the body of the motion. If approved, those by-laws would then be replicated in Schedule C of the new CMS. For a new or exclusive use by-law, this means the full text of the new or amended exclusive use by-law must be included in the body of the motion and the new or amended exclusive use plan must be attached to the motion. For an exclusive use by-law to be valid, the legislation requires that the grantee of the exclusive use must either provide written consent before the resolution is passed or must vote personally in the motion.
Requirements for special resolution
- at least two-thirds of the votes cast are in favour of the motion
- the number of votes against the motion is not more than 25% of the total number of lots
- the total CSLE of the votes against the motion is not more than 25% of the total contribution schedule lot entitlements for all lots in the scheme.
All 3 conditions must be met for the motion to pass by special resolution. If 1 of the conditions is not met the motion will fail.
Requirements for resolution without dissent
A motion is passed by resolution without dissent only if there are no votes against the motion (i.e. there are no, “no” votes).
If a voter abstains from voting, that is not included in the count of votes.
If you think your Scheme by-laws need updating we can provide you with a comprehensive review of your by-laws and our recommendations as a starting point. We see the by-law review process as a collaborative one between ourselves, the committee and lot owners and can help you tailor a perfect set of by-laws for your Scheme. Please contact us if you need some assistance.