Queensland Consolidated Acts

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997 - SECT 341

341 Right to exclusive use by-law

(1) This section applies if, immediately before the commencement, the registered proprietor for the time being of a lot (the
"lot" ) in an existing 1980 Act plan was entitled, or purportedly entitled, under a resolution of the body corporate, to a right of exclusive use and enjoyment of, or a special privilege in respect of, any of the common property under the existing 1980 Act plan, but no exclusive use by-law for the purpose of the right or special privilege had been agreed to.

(2) A by-law giving effect to the resolution is taken to have been agreed to by the body corporate under the 1980 Act before the commencement.

(3) However, the body corporate must not deposit the by-law for recording by the registrar under the 1980 Act unless the lot owner, within a reasonable time before the end of 18 months after the commencement, asks the body corporate to deposit the by-law for recording.

(4) Despite subsection (2), if action (including a failure to take action) by the body corporate in relation to the depositing the by-law for recording is the subject of an application under the dispute resolution provisions, it is competent for the adjudicator, in deciding whether to order the body corporate to deposit a by-law for recording, to consider whether it is equitable in all the circumstances for the order to be made, having regard especially to the following—

(a) the interests of other persons having an estate or interest in lots included in the new scheme;

(b) the extent to which the right or privilege mentioned in subsection (1) has been exercised or apparent before and after the commencement.

(5) The order of the adjudicator may include—

(a) a direction for a variation or modification of the provisions of the by-law to be deposited for recording; or

(b) a direction that no by-law be deposited.

(6) A by-law may be deposited for recording under an order of the adjudicator mentioned in subsection (4) even though more than 18 months have elapsed after the commencement.