Children, Leaks, Animals & Parking

Children, Leaks, Animals & Parking

Newcastle Presentation 3 August 2011

Tips and Traps for Managing Contentious Issues in Apartment Living

The owners corporation is the new fourth level of government

Federal government Housing policy and affordability

State government

Local government Building approvals and standards

Housing land release and zoning

Owners corporation By-laws about common property

Five things we will cover in the presentation

1. Making by-laws

2. Invalid by-laws

3. Controversial by-laws

4. Enforcing by-laws

5. Improving by-laws

The model by-laws may be all you need!

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

Short and simple

About things that matter

Tried and tested so easier to interpret

They are:


Developer imposed by-laws are often over the top

Full of useless possibilities (eg 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


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)


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 AmericaLife, Liberty and Happiness


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

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

Assess

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


Case study:

70’s 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?

Unreasonable by-laws are invalid

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)

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

Children have rights too!

Part 3 – Controversial by-laws

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.

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.

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

Today almost all apartments leak1. Identify the cause– Developer / builder defects

(common law / HOW)– Owners corporation failure

to repair and maintain (S 62 SSMA)

– Owners damage to common property (Model By-Law 5)

2. Negotiate solutions rather than litigate


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

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

Taking the yin and yang approach to enforcement

Part 4 – Enforcing by-laws

Proactively enforce by-laws requiring committee approval or consent

Reactively enforce by-laws about behaviour

Written enforcement policies help


Avoid by-law disputes arising from ignorance with a simple written policy

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 by-law:

A legal audit is useful

This will eliminate:

Part 5 – Improving by-laws

Inconsistent by-laws

Unnecessary by-laws

Outside powers by-

lawsUnreasonable

by-laws

Out of date 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


The art and science of writing reasonable by-laws

Follow these five questions


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


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’


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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 $330 Tailored by-laws (owners works and exclusive use)

By-law Explanatory memo All necessary consents

Fixed fee $550 (additional consultation at $330 / hour) Legal audit of existing by-laws Fixed fee $990Excludes registration fees, 48 hour turn around or it’s free

All of the above costs inclusive of GST

Coming webinars

To enrol now go to www.teyslawyers.com.au/strata-sessions/For further information email at [email protected]

http://www.teyslawyers.com.au/strata-sessions

mailto:[email protected]

About the presenterMichael 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 firm’s practice groups include building defects, management rights, strata community disputes, by-laws and rules and levy and fee 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

http://www.teyslawyers.com.au/

Children, Leaks, Animals & Parking

Education

common property

legal audit

part 2 invalid

owners

rules

invalid

part 1

law