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By laws webinar

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By laws webinar By laws webinar Presentation Transcript

  • Strata by-laws 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 Presentation for Bright & Duggan, 11 May 2011
  • 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
    By-laws about common property
  • Five things we will cover in the presentation
    Making by-laws
    Invalid by-laws
    Controversial by-laws
    Enforcing by-laws
    Improving by-laws
    View slide
  • 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
    View slide
  • Developer imposed by-laws are often over the top
    • Full of useless possibilities (e.g. 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 by-laws 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
    • Stop trying to save people from themselves
    • Don’t interfere with life and liberty when it doesn’t matter
    Founding Fathers of America
    Life, Liberty and Happiness
    Part 1 - Making by-laws
  • 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
    Part 2 – Invalid by-laws
  • Unreasonable by-laws are invalid
    Assess
    Case study:
    • 70s 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
    “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 by-laws
  • Absolute prohibitions of pets is unreasonable
    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)
    “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
  • 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
  • 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
    Part 4 – Enforcing by-laws
  • 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:
     
    Part 4 – Enforcing by-laws
  • A legal audit is useful
    This will eliminate:
    Inconsistent by-laws
    Outside powers by-laws
    Out of date by-laws
    Unnecessary by-laws
    Unreasonable by-laws
    Part 5 – Improving 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
    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 $250 incl GST
    Tailored by-laws (owners works and exclusive use)
    • By-law
    • Explanatory memo
    • All necessary consents
    Fixed fee $550 incl GST 
    Legal audit of existing by-laws Fixed fee $ 950 incl GST
    Excludes registration fees 
    48 hour turn around or it’s free
  • Coming webinars
    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 firms practice groups include building defects, strata community disputes, strata titles property law, by-laws and levy 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