This article discusses whether a body corporate ban on glass in the pool area is enforceable and whether it must be supported by a valid by-law.
Question: We have a line that defines the BBQ area and pool area. Despite a sign stating “no glass in the pool area”, some residents do not comply. Is it unreasonable to ban glass entirely from the whole area?
We have a line that defines the BBQ area and pool area. The pool area has signage stating “no food, alcohol, glass or pets in the pool area”, but we are finding some residents are not abiding.
The Body Corporates’ concern is that an accident or deliberate act of glass breakage may occur. We know it is costly and inconvenient for all residents when a pool needs to be drained. So do we be proactive now and ban ALL glass, including wine and beer bottles, from the whole area?
How do we manage this without having an onsite manager 24/7?
Answer: Is this a ‘house rule’ or an actual by-law?
It is essential you clarify if that signage is a ‘house rule’ or an actual by-law. If it is a house rule, not part of your registered by-laws, then that is unenforceable and at best, an aspirational aim.
If it is part of a by-law, then the body corporate needs to enforce that by-law and there is a prescriptive process for that to occur. If you don’t have a by-law about this, then you really should be reviewing your by-laws and getting the right by-law drafted. Remember that a by-law that ‘bans’ something can often times be an invalid by-law, so you would need to be careful in your drafting. This is something a legal practitioner with specific strata expertise can assist with.
You can also consider enforcing the nuisance or hazard proceedings of the legislation in this situation. This landmark decision from late last year contemplates what might constitute a ‘hazard’ in a body corporate.
Before all that, you might want to think about communications. Is everyone aware of the situation and the potential costs, and other consequences, of glass in the pool? It might be an idea to write to all residents and then it is important to do so in the right (positive) way.
You also mention that someone might be deliberately causing breakage. Firstly, it’s a serious thing to allege someone is doing that sort of thing deliberately, so be careful about saying it. Secondly, regardless of whether it is deliberate or not, damage done by an owner (or occupier – the technical term for a ‘tenant’ under Qld body corporate legislation) to common property can be recovered from that person. You would need evidence of that.
This post appears in Strata News #627.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898