Managing Common Property Reasonably

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  • 1. Essential Strata Management Module 3 Maintaining Common Property May 2013 Copyright 2013 Teys Lawyerswww.teyslawyers.com.au

2. The Owners Corporation Is The New Fourth Level Of Government Federal governmentHousing policy and affordabilityState governmentHousing land release and zoningLocal governmentBuilding approvals and standardsOwners Corporationrules about common property Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 3. Five Things We Will Cover In The Presentation 1. Making rules 2. Invalid rules 3. Controversial rules 4. Enforcing rules 5. Improving rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 4. 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 Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 5. 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 Part 1 - Making rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 6. 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 legislationFounding Fathers of America Life, Liberty and Happinessthingsinthe Stop trying to save people from themselves Dont interfere with life and liberty when it doesnt matterPart 1 - Making rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 7. 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 Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 8. 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 Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 9. House Rules Are InvalidIf its not a registered rule, it cant be enforced no matter how sensible No glass in the pool Dont slam the doorPart 2 Invalid rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 10. Children Have Rights Too!Rulesprohibitingorrestrictingchildren playing on common property areprobablydiscriminatoryandinvalid: Discriminates on basis of age and family statusYou dont have more liability because kids are playing outside. Thats like saying kids cant live on the second or third floor of a highrise because they might fall off a balcony. Its just a pretext to regulate the conduct of kids. Joe Kollin, USA Human Rights Lawyer. Tackle safety not special classes Part 3 Controversial rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 11. 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) Part 3 Controversial rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 12. Parking Is Always A Problem Additional rules can usefully add to OC powers to: Define what a visitor parking means Regulate oversized vehiclesAuthorise removal and impounding of owners cars but not visitorsOwners with titled or leased car spaces can remove cars for trespassPart 3 Controversial rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 13. Second Hand Smoke Rules Smoking on lots and common property causing smoke drift can be prohibited via rules Health evidence supports the banInline with social norms and community standardsCase law authority supports total banPart 3 Controversial rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 14. Appearance Rules Are Touchy Rules are permissible about appearances but these can be inflammatory Holiday decorationsFlags and flagpolesReflective coloursPolitical signsPolitically incorrect signsPart 3 Controversial rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 15. Taking The Yin And Yang Approach To Enforcement Proactively enforce rules requiring committee approval or consentReactively enforce rules about behaviour Part 4 Enforcing rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 16. Written Enforcement Policies Help Avoid rules disputes arising from ignorance with a simple written policyWhat 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?Part 4 Enforcing rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 17. 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 cant have special treatment Part 4 Enforcing rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 18. Always Attempt Mediation Mediation both informally (internal) and formally (through government offices) is always worthwhile Be respectful of different opinionsState arguments with clarity and without emotionLook for common groundNarrow the issuesDocument outcomesPart 4 Enforcing rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 19. 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 rules3. Sue for damages for breach of contract 4. Seek injunctive relief from VCAT 5. Issue statutory compliance notice and seek tribunal ordersPart 4 Enforcing rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 20. A Legal Audit Is Useful This will eliminateInconsistent rulesOutside powers rules Unnecessary rulesOut of date rules Unreasonable rulesPart 5 Improving rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 21. Community Consultation is Necessary Consultation is necessary but structure this so the process does not become unwieldy:Have advice at hand on invalid rulesReassure people exclusive use rules and approvals will remain intactSeek views on the real issues for the communityPart 5 Improving rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 22. 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?Part 5 Improving rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 23. The Biggest Battle Is CommunicationRule 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 Part 5 Improving rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 24. Its Time To Be Reasonable Its 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. Its 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 Part 5 Improving rules Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 25. RecapMake only reasonable rulesAvoid invalid rulesTemper controversial rulesTransparently enforce rulesReview rules responsibly Copyright 2013 Teys Lawyerswww.teyslawyers.com.au 26. 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 Michaels blog at www.michaelteys.com and follow him on Twitter at @MichaelTeys.comTeys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firms practice groups include building defects, strata community disputes, strata titles property law, by-laws and levy collection. Subscribefortheirfreee-newsletterStrataSpaceandfindoutmoreaboutthemwww.teyslawyers.com.au Copyright 2013 Teys Lawyerswww.teyslawyers.com.auat

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