ACT lot owner would like to know the difference between house rules, rules and bylaws in ACT strata.
Table of Contents:
- QUESTION: We are reviewing our House Rules in the light of the amended ACT legislation and trying to clean up and simplify the wording of the existing rules. Can we include regulation around the following topics?
- QUESTION: We are reviewing our House Rules in the light of the amended ACT legislation and trying to clean up and simplify the wording of the existing rules. Can we include regulation around the following topics?
- QUESTION: Can you tell me the difference between rules, house rules and bylaws in ACT strata? Which takes precedence? Can they be combined? How enforceable are each of these?
Question: Would you please tell me about the current situation in the ACT regarding drying washing on balconies in Strata apartments? Does it depend on the individual strata rules?
Would you please tell me about the current situation in the ACT regarding drying washing on balconies in Strata apartments? Does it depend on each individual building’s strata rules?
I understand the NSW Government introduced a by-law allowing the sun-drying of clothes on balconies. I also understand that Strata schemes are not obliged to adopt this by-law in NSW. Is this the same in ACT?
Answer: Any rules pertaining to washing on balconies would be determined by the House Rules or Alternate Rules for each respective Units Plan
The Default Rules of the UTMA make no specific reference to washing on balconies, and consequently, any rules pertaining to washing on balconies would be determined by the House Rules or Alternate Rules for each respective Units Plan.
Importantly, the effect of any Alternate Rule cannot result in a Rule prohibiting or restricting the installation, operation or maintenance of sustainability or utility infrastructure in or on the common property or a unit (S108)(3)(f).
Rule 1.4 of the Default Rules determines approval is required to erect or alter any structure in or on the unit, with the accepted interpretation being approval is only required for permanent structures. However, Rule 1.4(3) states that the owners corporation cannot withhold consent for any structure that is sustainability infrastructure. The definition of such in the UTMA Dictionary is as follows:
sustainability infrastructure—
- means infrastructure or equipment that—
- if installed in relation to a units plan—
- improves the environmental sustainability of the units; or
- reduces the environmental impact of the owners corporation and the units owners; and
- if installed in relation to a unit—
- improves the environmental sustainability of the unit; or
- reduces the environmental impact of the unit; and
- if installed in relation to a units plan—
- includes related utility service connections and equipment.
Therefore, it could reasonably be argued that the erection of a drying rack or washing line falls within the definition of sustainability infrastructure.
In most cases, washing on balconies is generally overlooked provided it remains below the height of the balcony balustrade. However, this accepted practice may also be challenged in the future as Rule 1.4(3) goes on to include the example that appearance is not a reasonable factor in withholding permission:
- However, if the structure is sustainability infrastructure, the owners corporation’s permission must not be unreasonably withheld.
Examples—permission not unreasonably withheld
- safety considerations
- structural considerations
Example—permission unreasonably withheld
external appearance of a unit or the units plan
In the current political environment, with considerable emphasis on sustainability and the environment, it could reasonably be expected that ACAT would not permit a rule prohibiting the use of clothes drying racks on balconies.
Nina Cannell
Signature Strata
E: [email protected]
P: 02 6185 0347
This post appears in Strata News #460.
Question: We are reviewing our House Rules in the light of the amended ACT legislation and trying to clean up and simplify the wording of the existing rules. Can we include regulation around the following topics?
I live in a small community of townhouses and am on the Executive Committee. We are reviewing our House Rules in the light of the amended ACT legislation and trying to clean up and simplify the wording of the existing rules.
Can we legitimately:
- prevent owners putting their unit on the short-term rental market, eg Airbnb
- limit the number of adults that can live in a share-house arrangement;
- limit how frequently, for how long, and who can park in our limited visitor parking, and
- prevent a resident from running a home-based business?
Answer: The questions raised do not lend themselves to yes or no answers. The issues are detailed.
The questions raised do not lend themselves to yes or no answers. The issues are detailed.
On the issue of short term letting and over-crowding, chapter 12 of my book which is currently on sale for $20 including postage and handling from the Kerin Benson Lawyers website (see information including a link at the bottom of this post) sets out how this works. There are a few moving parts to this which are not detailed in your question and therefore I am unable to answer the question. However, short term letting is permitted in some parts of the ACT.
Chapter 3 of my book deals with rules (and includes sections on car parking). In short, some steps can be taken to limit unauthorised parking in visitor car parking.
3.19 More on car parking granting: Aside from the grant of special privilege rights for car parking, car parking rights can be provided in other ways including the owners corporation granting:
- an easement over any part of the common property to park the motor vehicle common property; 1 or
- a licence over a specified part of the common property. The ACT unit Titles legislation is silent as to the granting of licences by owners corporations.
Note that while section 20(2) of the UTMA prohibits the transfer, sublet or mortgage of the owners corporation’s interest in the common property, a licence does not involve any of these actions. A licence simply provides the contractual right to park on common property.
In this regard, it should be noted that there is a difference between a lease and a licence. A lease creates an interest in the land which can be transferred to the lessee for the period of the lease as well as granting exclusive use of the land. A licence does not create or transfer an interest in the land nor does it allow the exclusive use of the land.
3.20 Wheel clamping. The general position is that wheel clamping is not permitted in the ACT unless a contractual agreement to do so exists or informed consent has been given.
As there is no legislation addressing this issue, the position is governed by the common law.
A tort is an act or omission by one person constituting an infringement of an interest of another person recognised by the common law as being worthy of protection and giving rise to a right of civil action. The common law has a number of torts (trespass to goods, conversion and detinue) which might apply where an owners corporation attempts to wheel clamp a car without the agreement or informed consent of the owner on the basis that to wheel clamp a car is an unjustifiable denial of the owner’s rights to the car.
Owners corporations should have no problem in creating a rule relating to parking in visitor spaces and wheel clamping provided the development consent or a covenant on the property do not make some express contrary provision in relation to owners or occupiers parking in visitor spaces. However, such a rule can only apply to owners and occupiers. Visitors will not be bound by such a rule as visitors will not have consented to that rule.
Proving a breach of the rule (with a view to issuing penalties on the owner or occupier) will require evidence as well as obtaining an order from ACAT to enforce the rule.
To deter visitors (as opposed to owners or occupiers) from unauthorised parking on common property, the owners corporation will probably need to:
- install a boom gate; or
- introduce time zones and have Access Canberra Parking Operations enforce these time zones. This will require an approach to Roads ACT to submit a traffic control device (TCD) plan showing the area, line markings and signage. Once a TCD is submitted and Roads ACT has confirmed its approval the owners corporation can approach Parking Operations to request the time zones be enforced.
Apparently, resident parking permits will not be issued on private land given adequate parking spaces are a factor in the development application process. Resident permits are issued for four areas in the ACT where there is likely abuse of residents parking facilities by office workers from nearby buildings and limited arrangements for on-site resident parking. These areas include:
- Bega and Allawah Flats, which are Government Housing Trust flats;
- Argyle Square; and
- Havelock House.
Footnotes:
- Unit Titles (Management) Act 2011 (ACT) s 20
On the issue of a home based business, there are some issues around this (see chapter 8 of my book on Work, Health and Safety) but very generally speaking, people are able to run a business from home.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #447.
Question: Can you tell me the difference between rules, house rules and bylaws in ACT strata? Which takes precedence? Can they be combined? How enforceable are each of these?
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These two are very different. The rules refer to issues such as the use of the units, renovations, pets etc. The house rules cover things like no washing on balconies, parking and noise.
Which takes precedence? Can they be combined? How enforceable are each of these documents?
Answer: In addition to Owners Corporation rules, some owners corporations may establish other rules or policies, sometimes referred to as house rules, which explain how the owners corporation rules will be interpreted.
I explain the difference between rules and house rules in section 3.12 of my book.
3.12 House Rules:
In addition to Owners Corporation rules, some owners corporations may establish other rules or policies, sometimes referred to as house rules, which explain how the owners corporation rules will be interpreted.
Although these house rules do not form part of the owners corporation rules and are not enforceable under the UTMA, they do provide owners and occupants with an outline of how decisions will be made by the executive committee and how the rules will be enforced by the owners corporation.
Occasionally, the owners corporation will pass a special resolution adding house rules to its registered rules and the strata manager should register these house rules at the Lands Titles Office as if they were rules. If this is done, the house rules will form part of the owners corporation rules and be enforceable.
Owners corporations need to keep the house rules up to date to ensure new owners and occupiers receive copies of the house rules. Once in place, the owners corporation should follow them as, if they are not followed, ACAT may apply an administrative law remedy against the owners corporation for failing to follow them.
Administrative law remedies are the tools available to a person who claims they have suffered an injustice following a government decision (eg where the government decision was based on bias or denial of natural justice) which may enable that person to appeal and have the governmental decision changed.
The Land Titles Office does not check rules when they are registered and therefore it is entirely possible that there are inconsistencies between rules and house rules which would need to be resolved (if both are registered).
By-laws is the terminology used under the NSW legislation and has no application in the ACT.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #296.
Have a question about house rules in ACT or something to add to the article? Leave a comment below.
Read next:
- ACT: Q&A Commercial Use of Common Property
- ACT: Q&A Proxy Votes, Absentee Votes and the Quorum
- ACT: Q&A Is there a Code of Behaviour for Difficult Lot Owners?
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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