182. The 5 By-Laws for Strata Managers to Recommend

This week, I’m coming to you all the way from Paris, France (actually, from inside a wardrobe in Paris, but you’ll have to tune in to find out more about that one…) I’m giving you the TOP FIVE by-laws I recommend all buildings have in place. These are the by-laws that quality strata managers are recommending to the buildings they manage.

Also,  listen closely for the detail of a special online event coming up, where I’ll be sharing the precise framework I apply when working out what makes a “good” by-law, and how to avoid the pitfalls of “bad” by-laws. 

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SP36965 has a long and proud history of banning dogs (and cats).
Keeping of animals
The owners or occupiers of the lot shall be entitled to keep any animal upon their lot provided that:
4.1. no dogs or cats, other than assistance animals as prescribed by legislation, shall be allowed upon any lot or the common property;
4.2 the animal is adequately restrained to prevent the animal entering or encroaching upon the common property or any other lot; and
4.3. the keeping of such animal is not otherwise prohibited by law.

http://www.billencliffs.org.au/

The SC put together a ‘working committee’ to review the by law.
The outcome was minutes;
RESOLVED that the committee consider the working committee’s report on by-law 4.1 – 28/8. Following a review of relevant strata legislation and recent tests cases, the working committee has resolved not to pursue alteration to by-law 4 at this stage. This by-law is considered in keeping with the rural context and environmental aspirations of the strata plan and reflective of the majority of the community’s wishes. The by-law is clearly stated and long-standing. While the by-law prohibits dogs and cats, it also makes provision for the keeping of assistance and other animals and in this sense should not be considered harsh or unreasonably oppressive.

Has this OC found a way to get around cases like Yardy and McCormick, a way around the intent of the Parliaments’ pets by law reform OR is a prohibitive clause in a by law just as ‘harsh’ as a completely prohibitive by law; seems this SP thinks not and will not move until challenged and forced to change.

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Still not convinced ROC (recovery of costs) by laws are valid as s 136 (2) says “A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law”.
There were several items on the list of costs and expenses during the podcast that it was suggested could be covered by a ROC by law BUT I was not hearing things that were not already covered by other legislation in relation to costs and expenses.
As a quick example just looking at the CAT Act we see
s 60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

So anything in a by law that would typically come under ‘costs’ in s 60 would be out of bounds for the OC to be claiming via a by law as NCAT has the discretion to award these costs; not a by law.
There are other examples of where a ROC by law encroaches upon other legislation.

There is also issues like the outcome of The Owners – Strata Plan No 52098 v Khalil [2014] NSWLC 2 where it was found at 58 that … None of the “expenses” which appear on Ms Khalil’s account statement prior to the commencement of these proceedings had been proved as a debt before a Court of competent jurisdiction…

A by law does not create proof of debt nor do by laws typical required a debt to be a fair debt.
I know a SP who was charging $77 for an over due levy letter generated by the SC, that needed CTTT to restrain the OC from such an activity (SCS 13/30809 unreported).

As much as ROC by laws sound good on paper and are intimidating for the uninitiated, ROC by laws are still a very grey area that will require a visit to a superior court to resolve validity issues.
I could only recommend a ROC by law if i sought to bluff my way to a desired outcome; a little like the OC that was told by their agent (at the general meeting to review their by laws) that they could keep their (invalid) no firearms by law as a bluff.

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Communications by law.
Some rather subjective terms in such a by law.
Offensive, abusive, insulting and rude just to name a few.
At this point do I up load the local court matter where the ‘learned’ Magistrate deemed the “f” word to not be offensive.
Under a communications by law some owners might be tempted to just go straight to mediation rather than negotiate the mine field that is subjective perception. Not to mention the source of a correspondence sometimes adds to reader sensitivity.
An SC member might see something that isn’t even there just so they can not respond to a correspondence from a less desirable owner.

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