Download pptx - Managing Common Property Reasonably

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Module 3 Maintaining Common Property

May 2013

Essential Strata Management


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 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!

Note - the type of matters covered noise, nuisance, damage,

behaviour, garbage, animals

Part 1 - Making rules

Short and simple

About things that matter

Tried and tested so easier to interpret

They are



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 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


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

Part 2 – Invalid Rules

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)


House Rules Are Invalid

Part 2 – Invalid rules

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


Children Have Rights Too!

Part 3 – Controversial rules

Rules prohibiting or restricting

children playing on common property

are probably discriminatory and

invalid:

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, 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

Part 4 – Enforcing rules

Proactively enforce rules requiring committee approval or consent

Reactively enforce rules about behaviour


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?

What steps do we take to verify complaints?

How do we try to settle disputes

internally?

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

Part 5 – Improving rules

Inconsistent rules

Unnecessary rules

Outside powers rules

Unreasonable rules

Out of date 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.• Is it practical and enforceable?

5.• 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 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 at

www.teyslawyers.com.au

About the Presenter

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