This article discusses whether new strata by-laws apply retrospectively and explains how updated CMS rules can affect existing owners and occupiers.
Question: Do new by-laws in an updated CMS apply retrospectively, or only to future changes?
Our body corporate is currently updating the Community Management Statement (CMS). When I first moved into the 40-year-old apartment block, there was no CMS. While I was chair, I introduced one to address certain issues, and now the CMS is being updated again. Over time, residents have made changes, many of which predate the introduction of the CMS.
Do provisions in the updated CMS apply retrospectively? For example, the new CMS prohibits hanging clothing on balconies if visible from other lots or outside the property. Will residents need to comply with this rule, or does the CMS only apply to future changes?
Answer: Engage with owners and occupiers about it beforehand.
From your query, it sounds as though you are talking about changing by-laws. In the example you provided, if there is currently no by-law regarding clotheslines on balconies, and a new by-law on this subject is proposed (with the new by-law/CMS passing at a general meeting), then yes, occupiers would be expected to comply. A qualifier on that is that the by-law would need to be consistent with section 180 of the Body Corporate and Community Management Act 1997, which talks about limitations on by-laws. A by-law cannot be unreasonable or oppressive, for example.
Is the clothesline by-law unreasonable or oppressive? Hard to say. It would be subject to wording and the individual circumstances of the scheme. I can visualise a few scenarios in which it could possibly be. Equally, that kind of by-law exists in several schemes.
As is the case with any proposed new by-law where it may not be universally acclaimed (and you will know if that is the case, I presume), it may be a good idea to try to do some engagement with owners and occupiers about it beforehand.
This is general information only and not legal advice.
This post appears in Strata News #757.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898