By laws consequential affects should be considered – Will this increase disharmony

06/08/2018

By-laws are fundamental to the operation and the rights and obligations of the Owners Corporation, lot owners, occupiers and others for the good management of the Strata.

Sometimes by-laws are proposed and/or passed due to a difficult situation that arises.  They can sometimes be proposed and/or passed without careful consideration of the overall and collateral effect.

Recently we became aware of an Owners Corporation who proposed and passed a by-law to the effect that an owner or occupier of a lot cannot prevent, interfere with etc any person engaged by the Owners Corporation including trades people or any other person engaged by the Owners Corporation providing services for which the Owners Corporation has engaged that person.

Further the by-law provides that if the Owners Corporation incurs any additional costs, expenses, fines etc as a result of a breach of this by-law arising from the action or inaction of an owner or occupier then those additional costs will be borne by the action or inaction of the owner or occupier.

Such a by-law was probably proposed (and passed) as a reaction to some event that occurred at the property without any real consideration as to the process of enforcement and the effect of the by law.

Some questions and complications that may arise from the above by law include:

How does an owner or occupier know whether a particular person at the strata premises has been engaged by the Owners Corporation for a particular purpose at a particular area of the property?

How does the owner know whether a particular person at the property is an invitee, trespasser or a person with criminal intent in relation to property or person?

The obvious question that arises in such circumstances is, is the Owners Corporation going to properly manage including securing the strata building?

If for example, an occupier or owner of a lot sees a “person” at the strata property does one make enquiry as to the purpose of that person, does one accept the answer, does one just ignore the person and leave him/her be or does one engage with the tradesman at a risk of suffering a fine by the Owners Corporation?

What is the process to be adopted by the Owners Corporation to notify the owners and occupiers of the name of the persons engaged by the Owners Corporation, for what purpose, at what times and where on the property?

In the event that a tradesman claims extra “money” because of disruption (as often is allowed in Building Contracts) is it up to the Owners Corporation to make all enquiries and ascertain the basis of the extras?  Why should the Owners Corporation pay for the extra fees if there is an individual owner or occupier who breached the by-law and as a result caused the extra costs?

Will such a by-law dissuade people from wanting to be on the Strata Committee and be faced with such claims?

One would think the proposing or passing of the by-law such as the above is an indicator of disharmony in the strata.  Will such a by-law create harmony within the strata.

Does the Owners Corporation propose to list the names of persons on a Noticeboard and the dates, times and purpose for which the Owners Corporation has approved a particular person to attend the property?

What process is the Owners Corporation going to adopt to inform owners and occupiers of the terms of engagement of those tradesmen authorised by the Owners Corporation and the consequences of an owner or occupier “interfering” with such tradesmen?

There are many other by-laws that are inappropriate for example a by-law which is contrary to the Strata Titles Legislation or other Act which is unenforceable.

What is the Owners Corporation going to do when they are faced with a complaint from one lot owner that another lot owner is breaching the by-law?

Does the Owners Corporation attempt to enforce their by-laws even though they may be unenforceable or is it the intention of the Owners Corporation to ignore by-laws? 

An example of a difficult issue is the constant debate at this stage as to whether it is lawful to restrict the rights of owners to engage in Air BNB.  If one was looking for a quiet environment and saw that the by-laws restricted short term occupancy such as Air BNB, can the purchaser of the lot rely upon the Owners Corporation to enforce the by-law?

If the by-law is unenforceable what is the consequences for the Owners Corporation, the lot owner or occupiers? 

If a by-law is badly drafted it will often breach the law and be held to be invalid.  If one wishes to obtain the same outcome a carefully drafted by-law may achieve the outcome for the benefit of all without the disharmony which will be caused by the inappropriate by-law or inappropriate drafting of such a by-law.

We encourage you as an owner and occupier of a valuable property to consider and query the by-laws to be proposed in relation to your environment so they encourage harmony rather than disharmony.

If you are a purchaser of a strata lot we suggest you properly consider the by-laws and the impact on the harmony of the Strata Scheme.

If you have any concerns in relation to these issues and seek advice as to how by- laws work and how they can impact on the enjoyment of your strata lot please contact Richard Watson or his Personal Assistant Shereen DaGloria to discuss your concerns and obtain clarity on this important aspect of strata living.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.