Question: Our by-laws require residents to accompany invitees if they use the facilities. Is this reasonable or can we introduce a bylaw that deals with guest’s behaviour rather than residents supervising guests?
We live in a large strata building with a pool and gym. Our by-laws require residents to accompany invitees if they use the facilities. While most resident comply and accompany their guests to the pool or gym, a small number of residents allow family and friends unsupervised access. This has resulted in offensive behaviour and an abuse of the pool rules. Resident are complaining.
Is there a fair and reasonable by-law to control guests without having to supervise them. Can we introduce consequences such as warnings, removal of access or other disciplinary action?
As residents, we feel this is our home. The pool forms part of our home so we should be able to allow our family to use the pool without having supervision. Obviously, if they behaved in an unreasonable way we would expect their access to be denied.
Answer: By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.
A key element to the success of any by-law is section 139 of the Strata Schemes Management Act. Particularly, section 139(1):
By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.
Note — Any such by-law may be invalidated by the Tribunal (see section 150).
Sometimes we have the benefit of precedence in Tribunal or Court cases which guide us on what is considered harsh, unconscionable or oppressive. This is not always the case.
For this reason, it is important to seek legal advice in the drafting of any by-law. Lawyers have far greater knowledge of all the case law that could impact the success of a by-law.
It is common for strata and community schemes to have by-laws that require a resident be present when their guests are using facilities. This stems from the accountability that residents ought to have in the proper use of a strata or community scheme’s facilities.
Other clauses that restrict access for improper use may be considered harsh, unconscionable or oppressive. The Tribunal generally prefers to be the one to decide if, in fact, a by-law is breached (as orders can be sought to confirm a breach of the by-laws). Therefore, restricting access on the grounds of an alleged breach of the by-laws may not meet the test.
The success of a by-law also comes from it being enforced – having by-laws that are not enforced is akin to having parking signs without Rangers issuing fines for non-compliance as a deterrent. Reliable evidence must be gathered and presented to the committee who have powers to enforce the by-laws. The committee must then take action (which, yes, unfortunately costs money like the Ranger does).
For specific advice regarding your circumstances, it is best to seek the advice of a Lawyer that specialises in strata law and can prepare a modern by-law that meets the test.
By-laws should also be reviewed regularly by Lawyers for the same reasons.
This post appears in Strata News #635.
Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960
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