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By laws webinar conducted 3 february 2011
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By laws webinar conducted 3 february 2011

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  • 1. Strata bylaws and the new fourth level of government
    “A law is something that must have a moral basis, so there is an inner compelling force for every citizen to obey.”
    Chaim Weizmann
    A TEYS Lawyers Webinar, 3 February 2011
  • 2. The owners corporation is the new fourth level of government
    Housing policy and affordability
    Federal government
    State government
    Housing land release and zoning
    Local government
    Building approvals and standards
    Owners Corporation
    Bylaws about common property
  • 3. Five things we will cover in the presentation
    Making bylaws
    Invalid bylaws
    Controversial bylaws
    Enforcing bylaws
    Improving bylaws
  • 4. The model bylaws 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 bylaws
  • 5. Developer imposed bylaws are often over the top
    • Full of useless possibilities (e.g. piano falling through floors)
    • 6. Written before built and often without consultation with designers
    • 7. Developers try to hold on to power too long via bylaws
    Part 1 - Making bylaws
  • 8. Exclusive use bylaws 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
    • 9. Should provide for owner repair and maintenance
    • 10. Can be self executing so if conditions not observed they can be cancelled without owners written consent (Cairns Aquarius case)
    Part 1 - Making bylaws
  • 11. Additional bylaws should be kept to a minimum
    Bylaws should be kept short and simple so they are easy for owners to refer to without lawyers.
    • Avoid repeating things in the legislation
    • 12. Stop trying to save people from themselves
    • 13. Don’t interfere with life and liberty when it doesn’t matter
    Founding Fathers of America
    Life, Liberty and Happiness
    Part 1 - Making bylaws
  • 14. Revoking, reviving and repealing bylaws
    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
    • 15. Not about ‘majority rule’
    • 16. Requires consideration of the individual
    Part 1 - Making bylaws
  • 17. Bylaws 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 bylaws
  • 18. Bylaws inconsistent with legislation are invalid
    Bylaws are the lowest forms of law so to the extent of inconsistencies with other laws they are invalid
    Assess
    Part 2 – Invalid bylaws
  • 19. Unreasonable bylaws are invalid
    Assess
    Case study -
    • 70s harbour side building
    • 20. Original by law specify method of enclosing balconies
    • 21. 23 of 30 owners do it this way over 30 years
    • 22. Penthouse owner renovates and wants by law for his works with frameless glass
    • 23. Reasonable or unreasonable?
    Part 2 – Invalid bylaws
  • 24. Imperfectly made bylaws are invalid
    Watch the technical rules for making bylaws
    Passed but not registered
    Not registered within two years
    Individual consents not given (valid after 2 years)
    Part 2 – Invalid bylaws
  • 25. House rules are invalid
    If it’s not a registered bylaw, it can’t be enforced no matter how sensible
    • No glass in the pool
    • 26. Don’t slam the door
    Part 2 – Invalid bylaws
  • 27. Children have rights too!
    Bylaws prohibiting or restricting children playing on common property are probably discriminatory and invalid
     
    • Applies even to NSW model
    bylaw 7
    • Discriminates on basis of age
    and family status
    • Tackle safety not special classes
    “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 high-rise because they might fall off a balcony. It’s just a pretext to regulate the conduct of kids.”
    Joe Kollin, USA Human Rights Lawyer.
    Part 3 – Controversial bylaws
  • 28. Absolute prohibitions of pets is unreasonable
    Remember, bylaws are not about majority rule; prohibition is not in the interests of all owners in the scheme -
     
    • Pets make people nicer
    • 29. Half the worlds population own pets
    • 30. Sensible rules can be made about behaviour (of humans as well as their animals)
    “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 bylaws
  • 31. Parking is always a problem
    Additional bylaws can usefully add to OC powers to -
    • Define what a visitor parking means
    • 32. Regulate oversized vehicles
    • 33. 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 bylaws
  • 34. Second hand smoke bylaws
    Smoking on lots and common property causing smoke drift can be prohibited via bylaws
     
    • Health evidence supports the ban
    • 35. Inline with social norms and community standards
    • 36. Case law authority supports total ban
    Part 3 – Controversial bylaws
  • 37. Appearance bylaws are touchy
    Bylaws are permissible about appearances but these can be inflammatory
     
    • Holiday decorations
    • 38. Flags and flagpoles
    • 39. Reflective colours
    • 40. Political signs
    • 41.   Politically incorrect signs
    Part 3 – Controversial bylaws
  • 42. 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 bylaws
  • 43. Written enforcement policies help
    Avoid bylaw disputes arising from ignorance with a simple written policy
    Part 4 – Enforcing bylaws
  • 44. 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
    • 45. Do not treat owners differently from tenants
    • 46. Committee members can’t have special treatment
    Part 4 – Enforcing bylaws
  • 47. Always attempt mediation
    Mediation both informally (internal) and formally (through government offices) is always worthwhile
     
    • Be respectful of different opinions
    • 48. State arguments with clarity and without emotion
    • 49. Look for common ground
    • 50. Narrow the issues
    • 51. Document outcomes
    Part 4 – Enforcing bylaws
  • 52. Legal remedies are cumbersome and should be your last resort
    There are five ways to legally enforce a bylaw -
     
    Part 4 – Enforcing bylaws
  • 53. A legal audit is useful
    This will eliminate -
    Inconsistent bylaws
    Outside powers bylaws
    Out of date bylaws
    Unnecessary bylaws
    Unreasonable bylaws
    Part 5 – Improving bylaws
  • 54. Community consultation is necessary
    Consultation is necessary but structure this so the process does not become unwieldy
     
    • Have advice at hand on invalid bylaws
    • 55. Reassure people exclusive use bylaws and approvals will remain intact
    • 56. Seek views on the real issues for the community
    Part 5 – Improving bylaws
  • 57. The art and science of writing reasonable bylaws
    Follow these five questions
    Part 5 – Improving bylaws
  • 58. The biggest battle is communication
    Bylaw disputes are less likely if there is effective communication
     
    • Websites help
    • 59. Occasional newsletters can profile bylaws and process
    • 60. Speak about them at annual general meetings
    Part 5 – Improving bylaws
  • 61. 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 bylaws
  • 62. Recap
    • Make only reasonable bylaws
    • 63. Avoid invalid bylaws
    • 64. Temper controversial bylaws
    • 65. Transparently enforce bylaws
    • 66. Review bylaws responsibly
  • TEYS Lawyers bylaw service is fast, technically correct, and unbelievable priced
    Off the shelf bylaws 
    • Bylaw 
    • 67. Explanatory memo.
    Fixed fee $250 incl. GST
    Tailored bylaws (owners works and exclusive use)
    • Bylaw
    • 68. Explanatory memo
    • 69. All necessary consents.
    Fixed fee $550 incl. GST 
    Legal audit of existing bylaws Fixed fee $ 950 incl. GST
    Excludes registration fees 
    48 hour turn around or it’s free
  • 70. Future webinars
    To enrol now go to www.teyslawyers.com.au/strata-sessions/
    For further information email at service@teyslawyers.com.au