Managing Common Property Reasonably

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Managing Common Property Reasonably

  1. 1. Essential Strata Management Module 3 Maintaining Common Property May 2013 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  2. 2. 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 rules about common property © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  3. 3. Five Things We Will Cover In The Presentation 1. Making rules 2. Invalid rules 3. Controversial rules 4. Enforcing rules 5. Improving rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  4. 4. The Model Rules 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 Part 1 - Making rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  5. 5. Developer Imposed Rules 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 rules Part 1 - Making rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  6. 6. Additional Rules Should Be Kept To A Minimum Rules should be kept short and simple so they are easy for owners to refer to without lawyers.  Avoid repeating legislation Founding Fathers of America Life, Liberty and Happiness things in the  Stop trying to save people from themselves  Don’t interfere with life and liberty when it doesn’t matter Part 1 - Making rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  7. 7. Rules 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 rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  8. 8. Rules Inconsistent With Legislation Are Invalid Rules are the lowest forms of law so to the extent of inconsistencies with other laws they are invalid Watch for inconsistencies with strata management laws (e.g. rules prohibiting letting) Other laws trump rules too (e.g. age discrimination laws) Local authority approvals and consents for use are laws (e.g. short term letting) Part 2 – Invalid Rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  9. 9. House Rules Are Invalid If it’s not a registered rule, it can’t be enforced no matter how sensible  No glass in the pool  Don’t slam the door Part 2 – Invalid rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  10. 10. Children Have Rights Too! Rules prohibiting or restricting children playing on common property are probably discriminatory and invalid:  Discriminates on basis of age and family status “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.  Tackle safety not special classes Part 3 – Controversial rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  11. 11. Absolute Prohibitions of Pets is Unreasonable Remember, rules 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) Part 3 – Controversial rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  12. 12. Parking Is Always A Problem Additional rules 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 or leased car spaces can remove cars for trespass Part 3 – Controversial rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  13. 13. Second Hand Smoke Rules Smoking on lots and common property causing smoke drift can be prohibited via rules  Health evidence supports the ban  Inline with social norms and community standards  Case law authority supports total ban Part 3 – Controversial rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  14. 14. Appearance Rules Are Touchy Rules are permissible about appearances but these can be inflammatory  Holiday decorations  Flags and flagpoles  Reflective colours  Political signs  Politically incorrect signs Part 3 – Controversial rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  15. 15. Taking The Yin And Yang Approach To Enforcement Proactively enforce rules requiring committee approval or consent Reactively enforce rules about behaviour Part 4 – Enforcing rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  16. 16. Written Enforcement Policies Help Avoid rules 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? Part 4 – Enforcing rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  17. 17. 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 rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  18. 18. 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 rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  19. 19. Legal Remedies Are Cumbersome And Should Be Your Last Resort There are five ways to legally enforce a rule 1. Take matters into your own hands (works for trespass) 2. Use remedies embedded in conditional rules 3. Sue for damages for breach of contract 4. Seek injunctive relief from VCAT 5. Issue statutory compliance notice and seek tribunal orders Part 4 – Enforcing rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  20. 20. A Legal Audit Is Useful This will eliminate Inconsistent rules Outside powers rules Unnecessary rules Out of date rules Unreasonable rules Part 5 – Improving rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  21. 21. Community Consultation is Necessary Consultation is necessary but structure this so the process does not become unwieldy:  Have advice at hand on invalid rules  Reassure people exclusive use rules and approvals will remain intact  Seek views on the real issues for the community Part 5 – Improving rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  22. 22. The Art And Science of Writing Reasonable Rules Follow these five questions 1. • Is this rule 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 rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  23. 23. The Biggest Battle Is Communication Rule disputes are less likely if there is effective communication:  Websites help  Occasional newsletters can profile rules and process  Speak about them at annual general meetings Part 5 – Improving rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  24. 24. 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 rules © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  25. 25. Recap  Make only reasonable rules  Avoid invalid rules  Temper controversial rules  Transparently enforce rules  Review rules responsibly © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
  26. 26. About the Presenter About the webinar 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 read Michael’s blog at www.michaelteys.com and follow him on Twitter at @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, 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 www.teyslawyers.com.au © Copyright 2013 Teys Lawyers www.teyslawyers.com.au at

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