Published on February 26, 2014
Children, Leaks, Animals & Parking Tips and Traps for Managing Contentious Issues in Apartment Living Newcastle Presentation 3 August 2011
The owners corporation is the new fourth level of government Federal government Housing policy and affordability State government Housing land release and zoning Local government Building approvals and standards Owners corporation By-laws about common property
Five things we will cover in the presentation 1. Making by-laws 2. Invalid by-laws 3. Controversial by-laws 4. Enforcing by-laws 5. Improving by-laws
The model by-laws may be all you need! They are: Short and simple About things that matter Tried and tested so easier to interpret Note - the type of matters covered noise, nuisance, damage, behaviour, garbage, animals – all reasonable except the one about children playing on common property (which is discriminatory) Part 1 - Making by-laws
Developer imposed by-laws are often over the top Full of useless possibilities (eg piano falling through floors) Written before built and often without consultation with designers Developers try to hold on to power too long via by-laws Part 1 - Making by-laws
Exclusive use by-laws are valuable and require great care Car parks, storage spaces, and courtyards created by exclusive use bylaws have capital value for owners: Require written consent of those directly affected Should provide for owner repair and maintenance Can be self executing so if conditions not observed they can be cancelled without owners written consent (Cairns Aquarius case) Part 1 - Making by-laws
Additional by-laws should be kept to a minimum By-laws should be kept short and simple so they are easy for owners to refer to without lawyers: Avoid repeating things in the legislation Founding Fathers of America Life, Liberty and Happiness Part 1 - Making by-laws Stop trying to save people from themselves Don’t interfere with life and liberty when it doesn’t matter
Revoking, reviving and repealing by-laws Orders will be made, ‘having regard to the interests of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property’ Calls for reasonableness Not about ‘majority rule’ Requires consideration of the individual Part 1 - Making by-laws
By-laws outside owners corporation scope are invalid Owners corporations are limited in scope to matters concerning common property and by laws must not step outside this power, for example: To levy for promotion of a strata title shopping centre To expend funds on letting services for lot owners To sponsor a local netball team Part 2 – Invalid by-laws
By-laws inconsistent with legislation are invalid By-laws are the lowest forms of law so to the extent of inconsistencies with other laws they are invalid Assess Watch for inconsistencies with strata management laws (eg by-laws prohibiting letting) Other laws trump by-laws too (eg age discrimination laws) Local authority approvals and consents for use are laws (eg short term letting) Part 2 – Invalid by-laws
Unreasonable by-laws are invalid Assess Case study: 70’s harbour-side building Original by law specify method of enclosing balconies 23 of 30 owners do it this way over 30 years Penthouse owner renovates and wants by law for his works with frameless glass Reasonable or unreasonable? Part 2 – Invalid by-laws
Imperfectly made by-laws are invalid Watch the technical rules for making by-laws Passed but not registered Not registered within two years Individual consents not given (valid after 2 years) Part 2 – Invalid by-laws
House rules are invalid If it’s not a registered by-law, it can’t be enforced no matter how sensible: No glass in the pool Don’t slam the door Part 2 – Invalid by-laws
Children have rights too! By-laws prohibiting or restricting children playing on common property are probably discriminatory and invalid: Applies even to NSW model by-law 7 Discriminates on basis of age and family status Tackle safety not special classes Part 3 – Controversial by-laws “You don’t have more liability because kids are playing outside. That’s like saying kids can’t live on the second or third floor of a highrise because they might fall off a balcony. It’s just a pretext to regulate the conduct of kids.” Joe Kollin, USA Human Rights Lawyer.
Absolute prohibitions of pets is unreasonable “After consulting with Geoffrey, I have been advised that there are many cats loose in Piney Lakes and we are not at all certain that the cat ‘clawing at screen doors, doing damage and creating a nuisance’ is my client.” – 1977 letter from a cat’s attorney to a community association. Part 3 – Controversial by-laws Remember, by-laws are not about majority rule; prohibition is not in the interests of all owners in the scheme: Pets make people nicer Half the worlds population own pets Sensible rules can be made about behaviour (of humans as well as their animals)
Parking is always a problem Additional by-laws can usefully add to OC powers to: Define what a visitor parking means Regulate oversized vehicles Authorise removal and impounding of owners cars but not visitors Owners with titled car spaces or exclusive use can remove cars for trespass Part 3 – Controversial by-laws
Today almost all apartments leak 1. Identify the cause – Developer / builder defects (common law / HOW) – Owners corporation failure to repair and maintain (S 62 SSMA) – Owners damage to common property (Model By-Law 5) 2. Negotiate solutions rather than litigate Part 3 – Controversial by-laws
Second hand smoke by-laws Smoking on lots and common property causing smoke drift can be prohibited via by-laws Health evidence supports the ban Inline with social norms and community standards Case law authority supports total ban Part 3 – Controversial by-laws
Appearance by-laws are touchy By-laws are permissible about appearances but these can be inflammatory Holiday decorations Flags and flagpoles Reflective colours Political signs Politically incorrect signs Part 3 – Controversial by-laws
Taking the yin and yang approach to enforcement Proactively enforce by-laws requiring committee approval or consent Reactively enforce by-laws about behaviour Part 4 – Enforcing by-laws
Written enforcement policies help Avoid by-law disputes arising from ignorance with a simple written policy What is our enforcement approach? How do we handle anonymous complaints? How do we try to settle disputes internally? Part 4 – Enforcing by-laws What steps do we take to verify complaints? When we will take external action?
Being consistent helps A written enforcement policy will help maintain consistency from one committee to the next The right to legal remedies will be lost if enforcement is inconsistent Do not treat owners differently from tenants Committee members can’t have special treatment Part 4 – Enforcing by-laws
Always attempt mediation Mediation both informally (internal) and formally (through government offices) is always worthwhile Be respectful of different opinions State arguments with clarity and without emotion Look for common ground Narrow the issues Document outcomes Part 4 – Enforcing by-laws
Legal remedies are cumbersome and should be your last resort There are five ways to legally enforce a by-law: 1. Take matters into your own hands (works for trespass) 2. Use remedies embedded in conditional by-laws 3. Sue for damages for breach of contract 4. Seek injunctive relief from superior courts 5. Issue statutory compliance notice and seek tribunal orders Part 4 – Enforcing by-laws
A legal audit is useful This will eliminate: Outside powers bylaws Inconsistent by-laws Unnecessary by-laws Part 5 – Improving by-laws Out of date by-laws Unreasonable by-laws
Community consultation is necessary Consultation is necessary but structure this so the process does not become unwieldy Have advice at hand on invalid by-laws Reassure people exclusive use by-laws and approvals will remain intact Seek views on the real issues for the community Part 5 – Improving by-laws
The art and science of writing reasonable by-laws Follow these five questions 1. • Is this by-law really necessary? 2. • Does it conform to modern social and broader community standards? 3. • Does the proposal provide options and alternatives for individual behaviour? 4. 5. • Is it practical and enforceable? • Is it lawful? Part 5 – Improving by-laws
The biggest battle is communication By-law disputes are less likely if there is effective communication Websites help Occasional newsletters can profile by-laws and process Speak about them at annual general meetings Part 5 – Improving by-laws
It’s time to be reasonable “ It’s time for associations to write responsible rules and review existing restrictions, to eliminate restrictions that are outdated and illogical, and to address specific problems with clear, specific solutions, to realize overzealous, unreasonable (committees) can be more damaging to property values than the violations they so rigorously try to prevent. It’s time to be reasonable.” Author, Kenneth Budd, ‘Be Reasonable! How Community Associations can Enforce Rules Without Antagonizing Residents, Going to Court, or Starting World War III’ Part 5 – Improving by-laws
Recap Make only reasonable by-laws Avoid invalid by-laws Temper controversial by-laws Transparently enforce by-laws Review by-laws responsibly
TEYS Lawyers by-law service is fast, technically correct, and unbelievably priced Off the shelf by-laws By-law Explanatory memo Fixed fee $330 Tailored by-laws (owners works and exclusive use) By-law Explanatory memo All necessary consents Fixed fee $550 (additional consultation at $330 / hour) Legal audit of existing by-laws Fixed fee $990 Excludes registration fees, 48 hour turn around or it’s free All of the above costs inclusive of GST
Coming webinars 4 August 2011 The Best Practice for Strata Insurance and Claims Handling 1 September 2011 6 October 2011 Who’s Responsible for these Defects and How Do I Get Them to Pay? How to Prevent Building Defect Litigation Tearing Your OC Apart To enrol now go to www.teyslawyers.com.au/strata-sessions/ For further information email at firstname.lastname@example.org
About the presenter Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the area of strata title law. He is a Fellow of the Australian College of Community Association Lawyers. He was formerly an Adjunct Lecturer with Charles Sturt University. He appears weekly on SKY News Business Channel's Property Success with Margaret Lomas and is a regular panellist for the property edition of Your Money, Your Call for the same channel. You can find out more about Michael at www.michaelteys.com TEYS Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firm’s practice groups include building defects, management rights, strata community disputes, by-laws and rules and levy and fee collection. Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au © Copyright 2011 Teys Lawyerswww.teyslawyers.com.au
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