Children, Leaks, Animals & Parking

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


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)

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


 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


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)

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?


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)


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


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.


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

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

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

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


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?


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

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

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

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


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?


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


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’


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 service@teyslawyers.com.au

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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