Managing Common Property Reasonably

Essential Strata Management
Module 3 Maintaining Common Property
May 2013

© Copyright 2013 Teys Lawyers

www.teyslawyers.com.au

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



Five Things We Will Cover In The
Presentation
1. Making rules
2. Invalid rules
3. Controversial rules
4. Enforcing rules
5. Improving rules



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


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


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



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


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


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


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


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)


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



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



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



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


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?



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 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



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


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



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?



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


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 rules



Avoid invalid rules



Temper controversial rules



Transparently enforce rules



Review rules responsibly



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.
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Managing Common Property Reasonably

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