This article is about how strata by-laws in NSW may be considered harsh, unconscionable or oppressive depending on how they are worded or enforced.
Hi, everyone, it’s Allison here from Thoughts of a Strata lawyer.
I’m talking to you today about by laws and in particular, our requirement that byelaws not be harsh, unconscionable, and oppressive.
I seem to just attract these sort of cases, I should say. More animal by-laws have passed my desk, more cost recovery, by-laws have passed my desk and I just want to put my two cents out there.
So, New South Wales has a requirement, both of its community management statements, precinct management statements, neighbourhood management statements, and also its by-laws for its strata schemes that a by-law must not be harsh, unconscionable or oppressive.
Now, arguably, it’s a little bit wider because there’s some limitations under the Community Lands Management Act, but in strata schemes, there has been a whole heap of cases on this point. Animals have been a key topic.
There’s been concerns about by-laws about flooring, cases, there’s been cooking cases; cost recovery cases have also been key.
Now, one case that I have been peripherally involved with related to a by-law and it wasn’t necessarily just the terms of the by-law and that by-law was quite bespoke to the scheme, but it was the application of that byelaw that had been passed years and years and years ago.
It was the application of the by-law that had actually made it now harsh, unconscionable and oppressive. We need to be aware of that when we’re looking at our drafting our by-laws and also applying our by-laws as well.
In that case, the by-laws found to be applied in a way that was, let’s just say in a punitive fashion. It hadn’t been applied previously and then the person that had the benefit of the by-law forced the owners corporation to apply it and the Tribunal said, no, that application of the by-law, that by-law was used for punitive reasons, and that makes it harsh unconscionable and oppressive.
So just watch that when you’re applying by laws, but watch it when you’re drafting by laws as well.
The other part I’ve seen recently is somebody said to me, again, animals, by-laws, you know, “what’s the limits of the restrictions”? What makes something harsh, unconscionable, and oppressive?
We have to look at the circumstances of the scheme. The question was posed to me at a panel I was sitting on . Would a limit of, say, 10 kilograms for a dog, would that in a by-law be okay or would that be considered harsh, unconscionable and oppressive?
My response was, I think that would be potentially harsh, unconscionable, and oppressive, depending upon the facilities in the scheme, but I think more likely than not, it would be harsh, unconscionable, and oppressive. It could also be applied in a harsh, unconscionable, and oppressive manner By that I mean, you could say, okay, well, you can have a dog that’s under 10 kilograms. That effectively cuts out the vast majority of breeds of dogs that lot owners could have. Is that something that is reasonable?
In my mind, probably not. It could also say, for instance, you did have a dog. Its breed was reputed to be under 10 kilograms. You could have the instance like myself, where I have a dog and I know we should adopt, not shop , but I got a second dog to keep my big boy company. And as he has now become known, the little one or the devil dog, was supposed to be the same size.
But devil dog is 10 kilograms, smaller than my big boy. So although they’re the same breed from the same breeder and related, I’ve got quite a large disparity in terms of the size of my dogs, neither of which are overweight, I should say. It’s just how they turned out when they matured.
So, for instance, if you had a by-law that said, you can have a dog that is 10 kilograms, but no more, or even 20 kilograms and no more and your dog puts on a little bit of weigh. they get two kilograms over the limit, well, then in applying your by-law to say, “no that dog’s not allowed”, that would then, to my mind, make the application of that by-law harsh, unconscionable, and oppressive.
You know, who is to say, and I don’t think it would be reasonable to say to a lot owner, “you’ve had your dog for 10 years, but I’m sorry, It’s now gotten fat, and the by-law says you can’t have it because it’s 12 kilograms, not 10 kilograms”.
I think there would be huge outrage by the lot owner about that. But I also suspect the Tribunal wouldn’t like the manner in which that by-law has been applied as well. And that type of by-law, that type of restriction would fall afoul of our harsh unconscionable and oppressive rule.
Are the limitations? I guess when we’re looking at by-laws, we need to think of, okay, where are the limits if we’re trying to restrict something, is the restriction reasonable? Does this restriction adversely affect somebody else’s property right? And if it does, does it do so for a really good reason?
One of the only rules or by laws that I could think of that would be a restriction that I think would adversely affect other people’s property rights, but could potentially be justified, is, for instance, a no smoking by law. Why?
Because smoking has considerable negative health effects, and that’s been established over time. So that’s one of the only limitations, I think, that you probably could get away with to say, nope, you just you can’t do it on the common property, you can’t do it so that any smoke drifts within your lot or outside of your lot on any other lot or the common property.
Restrictions such as you can only have balcony furniture of a certain weight. I’ve seen that. Where that is required for a safety reason, such as a wind factor, and oftentimes in our high rises it is , okay, I think that restriction’s pretty reasonable. Where you have no safety factor and you are required to purchase a certain brand of furniture or a certain look and feel of furniture for aesthetic reasons, well, potentially, if that doesn’t affect property rights. If it doesn’t detract from the property’s value, then that could be harsh, unconscionable, and oppressive.
We’re going to continue to see the limitations as these keep on getting tested, more and more cases are coming through the tribunal. It’s an exciting phase. I’ll look forward to more updates.
If you have an issue in your scheme, and you want to know what the prevailing thought process, and it is changing as more cases come out, you really should be seeking some legal advice that’s tailored to your scheme.
Hopefully this has helped and I’ll talk to you later.
Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This post appears in Strata News #754.
This article has been republished with permission from the author and first appeared on the Allison Benson website.
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