The following question regarding owners corporation house rules and the removal of political flags from a unit owners balcony was submitted to our site via email from an ACT lot owner. Thank you to Jan Browne and Craig Bowditch, Whittles Strata Partners.
Question: I have a question that I would really appreciate some advice or views on how to move forward regarding owners corporation house rules and political flags on balconies in a large strata complex located in the ACT.
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I have a question that I would really appreciate some advice or views on how to move forward regarding owners corporation house rules and political flags on balconies in a large strata complex located in the ACT.
Our complex is relatively new being just a few years old and house rules have really only been in place for about 6 months. One of the residents has a long string of coloured flags across their balcony. These flags represent a political movement. The residents with the hanging flags are highly passionate about them and are therefore harder to persuade than most in relation to being asked to remove them.
In addition, our Strata Manager has advised that the Owners Corporation House Rules are quite weak on the display of flags on balconies (political, religious or otherwise) and we are simply relying on the House Rules which relate to permanent fixtures on balconies. Our Strata manager and the Executive Committee are also mindful of the discrimination laws in the ACT as the penalties can be quite severe and the cost of legal fees may outweigh any benefit received.
There are a number of us who believe this is the thin edge of the wedge and given the sensitivities of current times, believe that religious or political adornment of balconies should not occur. Can we put forward a bylaw/house rule that is more specific without incurring any discrimination laws?
Answer: The hanging of anything over a balcony whether it be flags, bedding, washing, mats etc. would all normally be an exclusion under most House Rules.
The hanging of anything over a balcony whether it be flags, bedding, washing, mats etc. would all normally be an exclusion under most Owners Corporation House Rules. Without knowing the content of the House Rules and importantly if registered then hard to give a definitive answer.
If the House Rules have not been registered than hard to enforce by the Owners Corporation. The Owners Corporation would then revert to the “Default Rules”.
The rules of the owners corporation would normally include rules about causing nuisance or annoyance to other unit owners, rules about the use of the common property and rules about building or altering structures in or on the unit owner’s unit.
The Default Rules have contained in them the following wording.
7 Use of unit—nuisance or annoyance
(1) A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner,
occupier or user of another unit.
(2) This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission
for that use.
(3) Permission may be given subject to stated conditions.
(4) Permission may be withdrawn by special resolution of the owners corporation.
Erections and alterations
(1) A unit owner may erect or alter any structure in or on the unit or the common property only—
(a) in accordance with the express permission of the owners corporation by unopposed resolution;
The flags would need to be attached to some structure and could be perceived that damage could occur by ropes tied to said structure with the wearing of paint or materials. Also the liability risk if blown off.
Not sure what costs would be involved to the Owners Corporation except for a filing fee with ACAT. The Executive Committee could apply for an order to remove and proceed to Conciliation in the first instance.
And the Units Plan can certainly amend their House Rules and the recommendation is that a solicitor draw up said House Rules to cover this. There would be a cost for this action but takes the liability off the Executive Committee.
Lot Owner Reply:
Firstly, the House rules are registered with the ACT Govt. Our house rules pretty much espouse the comments you have kindly provided. The issue we have is that the residents are arguing that being asked to remove their flags is discrimination and they will “fight” any ACAT mediation or ruling.
Our Strata Manager/Executive Committee are reluctant to call their bluff on the basis that a legal battle might cost the Owners Corporation mega bucks. We are going to put forward a amendment of the current house rule to have the following wording:
A unit owner may erect or display a structure, flag, banner or similar that is visible to other unit owners only –
In accordance with the express permission of the owners corporation by unopposed resolution.
Hence, if a small and totally inoffensive banner, flag or similar is proposed, and there is nil opposition, the unit owner receives consent.
We have been advised that enforcing such a bylaw of course may well prove to be the obstacle. If a unit owner erects a religious flag/banner without seeking consent, and then refuses to take it down, the only effective recourse is initiation of legal proceedings!
Reply from Jan Browne
We would advise this owner that the process through ACAT is a low cost process. It will go to conciliation first. The only cost is the filing fee. The Executive Committee can represent the Owners Corporation. (Although there would need to be resolution authorising representatives at the ACAT hearing).
There would be a cost if the Owners Corporation was wanting the strata manager to attend.
If the lot owner wishes to pursue further then they may go via the Anti Discrimination process – Discrimination Act 1991. Discrimination can be selective and depends on the tribunal members. But again mediation is the preferred first step.
Noting that the Rules are registered the next step would be for the Executive Committee to have a meeting and resolve to instruct the Manager to issue a ‘Rule Infringement Notice’. This is the first step in the ACAT process.
This post appears in Strata News #147
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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