By laws webinar

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By laws webinar

  1. 1. Strata by-laws and the new fourth level of government<br />“A law is something that must have a moral basis, so there is an inner compelling force for every citizen to obey”<br />Chaim Weizmann<br />A Presentation for Bright & Duggan, 11 May 2011<br />
  2. 2. The owners corporation is the new fourth level of government<br />Housing policy and affordability<br />Federal government<br />State government<br />Housing land release and zoning<br />Local government<br />Building approvals and standards<br />Owners corporation<br />By-laws about common property<br />
  3. 3. Five things we will cover in the presentation<br />Making by-laws<br />Invalid by-laws<br />Controversial by-laws<br />Enforcing by-laws<br />Improving by-laws<br />
  4. 4. The model by-laws may be all you need!<br />They are:<br />Short and simple<br />About things that matter<br />Tried and tested so easier to interpret<br />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)<br />Part 1 - Making by-laws<br />
  5. 5. Developer imposed by-laws are often over the top<br /><ul><li> Full of useless possibilities (e.g. piano falling through floors)
  6. 6. Written before built and often without consultation with designers
  7. 7. Developers try to hold on to power too long via by-laws</li></ul>Part 1 - Making by-laws<br />
  8. 8. Exclusive use by-laws are valuable and require great care<br />Car parks, storage spaces, and courtyards created by exclusive use by-laws have capital value for owners:<br /><ul><li> Require written consent of those directly affected
  9. 9. Should provide for owner repair and maintenance
  10. 10. Can be self executing so if conditions not observed they can be cancelled without owners written consent (Cairns Aquarius case) </li></ul>Part 1 - Making by-laws<br />
  11. 11. Additional by-laws should be kept to a minimum<br />By-laws should be kept short and simple so they are easy for owners to refer to without lawyers:<br /><ul><li> Avoid repeating things in the legislation
  12. 12. Stop trying to save people from themselves
  13. 13. Don’t interfere with life and liberty when it doesn’t matter </li></ul>Founding Fathers of America<br />Life, Liberty and Happiness<br />Part 1 - Making by-laws<br />
  14. 14. Revoking, reviving and repealing by-laws<br />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’<br /><ul><li> Calls for reasonableness
  15. 15. Not about ‘majority rule’
  16. 16. Requires consideration of the individual </li></ul>Part 1 - Making by-laws<br />
  17. 17. By-laws outside owners corporation scope are invalid<br />Owners corporations are limited in scope to matters concerning common property and by laws must not step outside this power, for example:<br /><ul><li> To levy for promotion of a strata </li></ul> title shopping centre <br /><ul><li> To expend funds on letting services</li></ul>for lot owners <br /><ul><li> To sponsor a local netball team </li></ul>Part 2 – Invalid by-laws<br />
  18. 18. By-laws inconsistent with legislation are invalid<br />By-laws are the lowest forms of law so to the extent of inconsistencies with other laws they are invalid <br />Assess<br />Part 2 – Invalid by-laws<br />
  19. 19. Unreasonable by-laws are invalid<br />Assess<br />Case study:<br /><ul><li> 70s harbour-side building
  20. 20. Original by law specify method of enclosing balconies
  21. 21. 23 of 30 owners do it this way over 30 years
  22. 22. Penthouse owner renovates and wants by law for his works with frameless glass
  23. 23. Reasonable or unreasonable?</li></ul>Part 2 – Invalid by-laws<br />
  24. 24. Imperfectly made by-laws are invalid<br />Watch the technical rules for making by-laws<br />Passed but not registered<br />Not registered within two years<br />Individual consents not given (valid after 2 years)<br />Part 2 – Invalid by-laws<br />
  25. 25. House rules are invalid<br />If it’s not a registered by-law, it can’t be enforced no matter how sensible:<br /><ul><li> No glass in the pool
  26. 26. Don’t slam the door</li></ul>Part 2 – Invalid by-laws<br />
  27. 27. Children have rights too!<br />By-laws prohibiting or restricting children playing on common property are probably discriminatory and invalid: <br /> <br /><ul><li> Applies even to NSW model </li></ul> by-law 7 <br /><ul><li> Discriminates on basis of age </li></ul> and family status <br /><ul><li> Tackle safety not special classes</li></ul>“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.” <br />Joe Kollin, USA Human Rights Lawyer.<br />Part 3 – Controversial by-laws<br />
  28. 28. Absolute prohibitions of pets is unreasonable<br />Remember, by-laws are not about majority rule; prohibition is not in the interests of all owners in the scheme:<br /> <br /><ul><li> Pets make people nicer
  29. 29. Half the worlds population own pets
  30. 30. Sensible rules can be made about behaviour (of humans as well as their animals) </li></ul>“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. <br />Part 3 – Controversial by-laws<br />
  31. 31. Parking is always a problem<br />Additional by-laws can usefully add to OC powers to:<br /><ul><li> Define what a visitor parking means
  32. 32. Regulate oversized vehicles
  33. 33. Authorise removal and impounding of</li></ul> owners cars but not visitors<br /> <br />Owners with titled car spaces or exclusive use can remove cars for trespass<br />Part 3 – Controversial by-laws<br />
  34. 34. Second hand smoke by-laws<br />Smoking on lots and common property causing smoke drift can be prohibited via by-laws <br /> <br /><ul><li> Health evidence supports the ban
  35. 35. Inline with social norms and community standards
  36. 36. Case law authority supports total ban</li></ul>Part 3 – Controversial by-laws<br />
  37. 37. Appearance by-laws are touchy<br />By-laws are permissible about appearances but these can be inflammatory <br /> <br /><ul><li> Holiday decorations
  38. 38. Flags and flagpoles
  39. 39. Reflective colours
  40. 40. Political signs
  41. 41.   Politically incorrect signs </li></ul>Part 3 – Controversial by-laws<br />
  42. 42. Taking the yin and yang approach to enforcement<br />Proactively enforce by-laws requiring committee approval or consent <br />Reactively enforce by-laws about behaviour<br />Part 4 – Enforcing by-laws<br />
  43. 43. Written enforcement policies help<br />Avoid by-law disputes arising from ignorance with a simple written policy<br />Part 4 – Enforcing by-laws<br />
  44. 44. Being consistent helps<br />A written enforcement policy will help maintain consistency from one committee to the next <br /> <br /><ul><li>The right to legal remedies will be lost if enforcement is inconsistent
  45. 45. Do not treat owners differently from tenants
  46. 46. Committee members can’t have special treatment </li></ul>Part 4 – Enforcing by-laws<br />
  47. 47. Always attempt mediation<br />Mediation both informally (internal) and formally (through government offices) is always worthwhile <br /> <br /><ul><li> Be respectful of different opinions
  48. 48. State arguments with clarity and without emotion
  49. 49. Look for common ground
  50. 50. Narrow the issues
  51. 51. Document outcomes</li></ul>Part 4 – Enforcing by-laws<br />
  52. 52. Legal remedies are cumbersome and should be your last resort<br />There are five ways to legally enforce a by-law:<br /> <br />Part 4 – Enforcing by-laws<br />
  53. 53. A legal audit is useful<br />This will eliminate:<br />Inconsistent by-laws<br />Outside powers by-laws<br />Out of date by-laws<br />Unnecessary by-laws<br />Unreasonable by-laws<br />Part 5 – Improving by-laws<br />
  54. 54. Community consultation is necessary<br />Consultation is necessary but structure this so the process does not become unwieldy <br /> <br /><ul><li> Have advice at hand on invalid by-laws
  55. 55. Reassure people exclusive use by-laws and approvals will remain intact
  56. 56. Seek views on the real issues for the community</li></ul>Part 5 – Improving by-laws<br />
  57. 57. The art and science of writing reasonable by-laws<br />Follow these five questions <br />Part 5 – Improving by-laws<br />
  58. 58. The biggest battle is communication<br />By-law disputes are less likely if there is effective communication <br /> <br /><ul><li> Websites help
  59. 59. Occasional newsletters can profile by-laws and process
  60. 60. Speak about them at annual general meetings </li></ul>Part 5 – Improving by-laws<br />
  61. 61. It’s time to be reasonable<br />“<br />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.<br /> <br />Author, Kenneth Budd, ‘Be Reasonable! How Community Associations can Enforce Rules Without Antagonizing Residents, Going to Court, or Starting World War III’ <br />”<br />Part 5 – Improving by-laws<br />
  62. 62. Recap<br /><ul><li> Make only reasonable by-laws
  63. 63. Avoid invalid by-laws
  64. 64. Temper controversial by-laws
  65. 65. Transparently enforce by-laws
  66. 66. Review by-laws responsibly</li></li></ul><li>TEYS Lawyers by-law service is fast, technically correct, and unbelievably priced<br />Off the shelf by-laws <br /><ul><li>By-law 
  67. 67. Explanatory memo</li></ul> Fixed fee $250 incl GST<br />Tailored by-laws (owners works and exclusive use)<br /><ul><li>By-law
  68. 68. Explanatory memo
  69. 69. All necessary consents</li></ul> Fixed fee $550 incl GST <br />Legal audit of existing by-laws Fixed fee $ 950 incl GST<br />Excludes registration fees <br />48 hour turn around or it’s free <br />
  70. 70. Coming webinars<br />To enrol now go to www.teyslawyers.com.au/strata-sessions/<br />For further information email at service@teyslawyers.com.au<br />
  71. 71. About the presenter<br />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<br />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. <br />Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au<br />© Copyright 2011 Teys Lawyerswww.teyslawyers.com.au<br />

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