what is a by-law

Many people are opting to live in apartment or high-rise accommodation and, invariably, it’s the case that issues have a tendency to arise given the close proximity of the person or the people living next door. Inevitably when those issues do come up, questions follow in relation to bylaws. In this podcast, David Sachs from Sachs Gerace Lawyers discusses by-laws, in particular, what they are, what happens when they are breached and what to do if you wish to exercise your rights in relation to a by-law.

David Sachs:  Well, bylaws are a set of rules that govern a particular strata scheme. So, a strata scheme being, if you like in common language, just a unit block and all of the people who live in it, whether they’re owners or owner residents, or whether they’re tenants. And there’s a specific set of rules that regulate the way those people deal with each other, and the way they can use common property, and the sort of things that they can and can’t do whilst they’re on the premises. If you were thinking of an analogy, it’d be kind of like if you’re a member of a golf club or a tennis club. It’d be the rules that regulate that golf club. You can’t play golf after 10:00 p.m. in a strata scheme. You can’t make a certain amount of noise after 10:00 p.m. And the reason why particular attention needs to be paid to them is because I think the rules are not set by some third party. There is a standard set of rules that can be adopted by a strata scheme. But, essentially, a strata scheme can set the rules that it thinks is appropriate. So, all of the owners can get together and they decide themselves what they want their rules to be, rules about parking, rules about garbage, rules about advertising, noise, smoking, cooking smells, how people use common property, swimming pools if you’ve got one, what happens with the gardens, all of those things. And that depends. If you don’t have a swimming pool, you don’t need rules about the swimming pools. But, if you do, then a strata scheme can set pools. Depending on how the garbage is set up, you may or may not need rules. Depending on the type of people who live in your strata scheme, you may or may not need rules and regulations about use of the clothes line or hanging washing on verandas, all those things. But, people can very carefully decide for themselves.

A big issue that often causes some friction and is of interest to a certain group of people are pets. So, a strata scheme can decide whether or not and in what circumstances people are allowed to keep pets and, if so, what they are — goldfish, [inaudible], cats, dogs, whatever it might be.


Interviewer:  It’s far reaching, isn’t it really?


David Sachs:  Well, it is very far reaching. The rules, provided they’re not completely ridiculous, like there’s a vernacular term called the Chicken Bylaw, where if you passed a rule that required people to, when on common property to flap their arms about them and cluck like a chicken, then you can’t make a rule about that — something that’s outside the scope of what a strata scheme would ordinarily regulate. But, apart from that, it can be as broad or as narrow, as specific, as strict or as loose as an owner’s corporation considers appropriate. And, when I say an owner’s corporation, I mean the majority of owners. It could be bylaws established by votes and people can vote against them. But, in the end the majority decides.


Interviewer:   Is it the case that lots of people sort of go into these arrangements I suppose without due consideration to the bylaws generally?


David Sachs:  Well, it’s a common thing that I have observed in doing strata law over many years, is that people are remarkably ignorant when they’re either coming into a block of units or even if they’ve lived there for a very long time, what the rules are and what it is that they’re able to set up, what they can set up for their strata scheme because under the Strata Schemes Management Act, which is the Act of Parliament that gives a lot of regulation to the way strata law operates, there’s what called the Model Bylaws. So, if you don’t do anything, then the Model Bylaws will apply to you and they’re quite useful. I mean they’re a good template for the sort of things that people should have as part of their regulation between themselves. Just to give you an example, you can’t — the Model Bylaws prohibit people from keeping explosives on lot property. It’s just common sense. It’s obvious. But, I guess, if people were sitting down and thinking about their bylaws, that might not occur to a lot of people. But, the Model Bylaws are there to set those rules. But, that really should be the starting point. And I think a lot of owners in strata schemes don’t even get to the starting point. They just assume that the laws have already been established for them and they don’t think about what they can do for their own particular scheme.


Interviewer:  What is a breach of a bylaw? How does that come to be?


David Sachs:  Well, just like any rule. So, if you were thinking about — if there was a parking rule that said two hour parking, you parked for three hours, there’s a possibility that you would be in breach and you could be fined. These rules, which are prescriptive and they tell you what to do or, in certain circumstances, what you can’t do enable somebody to identify when the rule is not being complied with. And that would be a breach. So, some of them are very specific. For example, if you’re not allowed to use a swimming pool after 9:00 p.m., if someone’s using it at 9:30, that’s a fairly obvious breach. Some of them are a little bit more subjective. So, there is — one of the standard bylaws is not to unreasonably interfere with another lot owner’s use and enjoyment of their property. So, that can be — different people would come to different conclusions about whether noise or different conduct that people might engage in on common property, whether that would be a breach of that bylaw. So, it really depends. Mostly, it’s obvious and, sometimes, it’s not so obvious. And it often leads to a lot of conflict between people.


Interviewer:  And is it only lot owners that can actually do something about a breach?


David Sachs:  Well, lot owners can do something about a breach. You’ve got different groups of people who are operating in strata. And, obviously, the lot owners are the people who are there. There’s an executive committee, an executive committee of lot owners. But, it doesn’t necessarily have to be lot owners. They can also be tenants or people who just happen to live there. Like if a wife owns a property and the husband is living there, then the husband could be on the executive committee as a resident. You can also bring in third parties. So, there can be somebody else who sits on the executive committee for whatever reason it might be who doesn’t even live in the unit block. So, the executive committee itself can enforce bylaws or do something about breaches. And then, of course, the owner’s corporation, acting as the body of lot owners that in fact owns all of the common property can, as that statutory corporation, also seek to enforce the bylaws. So, there’s a whole range of people who can do something about it.


Interviewer:  Is there a recommended approach, David, that — I’m assuming that sometimes people might handle breaches not in the best manner. Is there a proper procedural way of doing this?


David Sachs: Like anything, the best way of resolving any dispute is to try and engage the two people who are in the dispute, whatever it might be, to try and see if they can come to some accommodation. And that can often be assisted. Particularly, if you are the person who has got a beef because you think somebody is breaching the bylaws, often it would be useful to get some short legal advice about whether the other person has, in fact, committed a breach because that would then give you — even though it doesn’t mean that you’re getting legal or you’re going to take someone to the tribunal, or you’re even going to go through any official channels, it at least gives you some knowledge and composure when you’re dealing with another person to be able to explain what it is that you’re concerned about, why you think there’s a breach, and what you think should be done about it in order to achieve a mutually convenient solution to it. Sometimes, people are not aware of the bylaws like I said earlier. They don’t even know that there’s a restriction on certain things. And, until you point them out and if that can be backed up with some legal support, then it might be treated more seriously. But, that’s obviously the best way to do it. And, whether you deal with it directly, if you feel comfortable with that, or you want to refer it to the executive committee and ask them to make a slightly more official approach, either in person or a written notice, whether it’s to a specific person or to the occupiers generally, sometimes that’s all that is required. And that would probably solve — that sort of approach would probably solve 90+% of any of the grievances arising from bylaw breaches.


Interviewer:  And, conversely, if you had breached a bylaw, what should you do?


David Sachs:  Well, people need to be aware that the bylaws do actually — they are rules that can be enforced. You can be fined to different degrees. So, you can get a notice from the owner’s corporation or the executive committee requiring you to rectify your breach. And, if you don’t do that, then the matter can be immediately taken to the tribunal and a fine imposed. I mean you can’t go to jail or anything like that. It’s not a criminal offense. But, the fines can be very substantial and many hundreds of dollars. And, in more egregious breaches of bylaws, orders can be obtained from the tribunal requiring a lot owner to comply with a bylaw or conduct themselves in a particular way. And, if you don’t comply with those, the fines can be many thousands of dollars. So, people need to be aware that you can’t just sort of brush them aside and ignore them. So, the consequences being so substantial, it’s always worthwhile, particularly if you feel that you’re doing what you’re entitled to do, it would be prudent to get some legal advice. For example, just to ask somebody, “Am I allowed to do this?”

And I’ll give you an example of something that I can speak of from my personal experience is that I’m acting for a lot owner who was concerned that some debris was being thrown onto his balcony, and he had some suspicions about who was doing it because there was a long, simmering dispute with another lot owner. And that person, I guess, was in close proximity to his unit and could have thrown the debris onto his unit. And he put some small surveillance cameras onto his balcony so he could find out when the stuff was thrown there and, perhaps, catch who it was who was actually doing it so that he could actually target the right person. Well, the other person then complained because he felt that the security cameras were an intrusion on his privacy and his right to be able to use his balcony without being spied on. That was the language that was being used. And, ultimately, it had come up before the tribunal, which is when I got involved, when there’s actually tribunal proceedings, about whether the security cameras were entitled to be there, and whether they should be removed, and what the conditions should be about them. And this dispute has become very substantial. And, accordingly, is potentially expensive.

But, some prudent advice about what people are entitled to do at an early stage and what the rights of the objecting lot owner might be in order to prevent things from occurring could probably have nipped this dispute much earlier on before it becomes a question that’s being litigated in the tribunal. That’s kind of the way I like the disputes being resolved. And people can, of course, go out and try to work them out themselves. But, the backing of legal advice and the knowledge that you’re acting in accordance with the Strata Schemes Management Act, and you’re acting in accordance with the bylaws, and that there’s a solid objective opinion behind you to support the position you’re taking is a very I guess effective way of conducting yourself. Most corporations do and that’s what people do. They get advice before they do something. And in the microcosm of an owner’s corporation, that advice is also sound.


Interviewer:   I was going to say, David, it’s to be anticipated I suspect that, given that you’ve got lots of people in close proximity living together, that there will inevitably be issues. And seeking advice early just makes so much common sense.


David Sachs:  It does. So, for example, I guess people might immediately come to a view about those surveillance cameras and think, “Geez. I wouldn’t want to have surveillance cameras possibly looking at me whilst I’m sitting on my balcony drinking my coffee in the morning.” But, the dispute may be about — it keeps [inaudible] in that same scheme, which honestly it’s a hornet’s nest. There are elderly lot owners who were complaining about a younger family putting one of those plastic pools on the balcony and filling it up so that a young child can play there in the afternoon. And, so, people are aggrieved by noise that’s being made, by splashing, and suggesting that it might be causing some damp and things. I mean the idea that those disputes would become official is kind of — I mean, to me, it seems kind of ridiculous. But, that’s often the way these disputes manifest themselves and the way people living together express their frustrations about not being able to control every aspect of their environment. When you’ve got people right next to you, that’s what happens. Who likes to be woken up in the morning by the sound of the toilet flushing next door because there appears to be inadequate acoustic material between the door? And the builder had built it so the bathroom was right near the bedhead of your neighbor’s master bedroom? These things arise and they need to be dealt with.


Interviewer: It’s fascinating area of law!


David Sachs: Right. Because it’s real people doing real things. We’re not talking about things at a policy level or whatever. We’re talking about actual people making decisions about their lives and trying to accommodate the interests of other people. I mean I like it. It’s real democracy in action. And once people I guess understand that they are empowered to set their own rules and they’ve got a say in things, then it’s not only — you’re not just voting. You don’t just vote every year on something. You can take an active role in the way the whole thing is being administered. To me, I think that can be very empowering for lot owners. Or, of course, if you choose not to, you just want to take a passive role, then you can choose to do that if you wish. But, just be wary. I mean people need to be wary that, when they take a passive role and other people are taking an active role, that it’s the active people that get things done and that passive people tend to get things done to them.


Interviewer: David, thanks for joining me.


David Sachs:  Alright. Thanks, Dan.


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