Not Every Strata Problem is a Nail [the free version]

or, stopping hammering by-laws as the everything solution …

Over 25 years ago I popularised by-laws as a way to customise strata building operations.  But the proliferation of strata by-laws and rules since then has gone a bit too far; leading to many unnecessary, inappropriate and invalid by-laws and rules with most strata stakeholders placing undue reliance on them to fix all strata problems.  Here are some examples of bad by-laws and rules, and my thoughts about the strata by-law phenomenon.

[11.25 minutes estimated read time & 2247 words]

INTRODUCTION

You’ve probably heard of Maslow and his hierarchy of needs. 

But, Maslow also popularised another cognitive theory called the ‘law of the instrument’ or the ‘Birmingham screwdriver’.

‘If all you have is a hammer, then every problem looks like a nail!’

It refers to the practice of using one tool [usually your favourite] for all purposes.

Well, I’m worried that too many strata mechanics think their by-law or rule hammer can fix everything that happens in strata buildings and are using it everywhere.

I’ve had to review a few by-laws and rules recently and found some serious flaws in a surprising number of them.  Plus, many of them are poorly written [verbose, overly formal and unstructured] and others are just impractical or impossible to apply or enforce.

What gives, and why?

SOME BAD BY-LAW & RULE EXAMPLES

Here are just three examples of the unnecessary, invalid or just bad use of strata by-laws and rules I’ve come across [plus the problems with each of them].

1. A NSW by-law that restricts the number of people that can be in strata lots or use common property facilities that’s intended to stop overuse by non-residents

This kind of by-law restricts people numbers and is intended to prevent the overuse of common property facilities like a gym or pool, particularly by non-owners or non-residents as strata buildings somehow consider it unfair that they do so.

But, strata owners and strata tenants have unfettered property rights to have guests and visitors to their lots and to use the common property, so this kind of by-law is likely to infringe on their basic private property rights.

It’s also likely to be outside the very limited scope that the untested provisions in section 137 and regulation 36 of the NSW strata laws appear to give to by-laws limiting the number of adults who can reside in a strata lot. 

So, there are serious doubts about the validity of that kind of by-law or rule. Plus, I don’t know how it would be policed or enforced.  I guess those strata buildings will also try to limit fob or other security device access which opens another legal can of worms.

2. A rule that requires polite communication between strata owners and others and excuses committees, managers, etc from responding to rude contacts

This kind of rule or by-law prescribes behaviour in communications and sometimes authorises strata committees, managers and others from having to respond to rude communications.

I suspect a rude strata owner would not know [or care] about a politeness by-law. Or, even if the strata committee could respond by sending the strata owner a copy of the politeness by-law that; ‘s unlikely to work.

It’s very likely that trying to prescribe communication protocols isn’t within the functions of strata corporations. 

Plus, to the extent that the strata laws require strata corporations to respond to or deal with strata owner requests, a rule or by-law saying they don’t need to will be invalid.

And, exactly how do you define appropriate and innappropriate communications?

Perhaps there are better ways to improve intra-strata building communications.

3. A strata by-law or rule restricting the installation of and prescribing controls over apartment blinds and curtains.

These kinds of strata by-laws or rules are often found in newer and more upmarket strata buildings and are intended to provide for a more uniform appearance to the strata building when viewed from the outside. 

However, there’s already standard appearance by-law or rules in most Australian states that deal with appearance issues in less prescriptive way and Cooper’s Case in NSW suggests that blanket bans in by-laws will be invalid.

Plus, in New South Wales, the strata law provisions about cosmetic and minor alterations allow blind and curtain alterations without approval so this kind of by-law or rule would be ineffective to the extent it is inconsistent with those strata law permissions.

There are many many more examples of bad by-laws or rules like those banning pets, Air BNB, and imposing money penalties and fines.

Frankly, invalid and poorly written by-laws and rules are a waste of strata stakeholder time as they’re never going to fix any problems and will hurt the strata building and the wider strata sector in obvious and less obvious ways.

But, even valid and properly drafted by-laws may also be a waste of time because the by-laws or rules may be trying to fix problems that don’t need fixing, as they are dealing with issues where societal and legal thinking has moved on or because they can’t be effectively enforced.

And, it’s not just strata committees, strata managers or strata lawyers who love strata by-laws and rules … so do governments as they suggest more and more of them to strata buildings even though it’s increasingly likely that even some statutory by-laws might be invalid.

Plus, haven’t we learned by now that generic by-laws and rules don’t apply neatly to all strata buildings and overly detailed by-laws and rules apply awkwardly to most strata buildings.

MORE ABOUT BY-LAW AND RULE PROLIFERATION

So, why is all this by-law and rule making happening in strata buildings and what can and should be done about it? 

Here are 13 observations about by-laws and rules. 

They’re shortlisted in this article but are discussed in more detail in the paid subscriber version.

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1.   Writing a rule guarantees nothing.  After all, remember King Kanute.

Although there have been strata by-laws and rules for a long time, some of the originals [like parking in common property spaces] are still being breached today. 

So, the mere existence of the prohibition isn’t enough to change strata owner or resident behaviour.  And, that’s for fairly obvious and well-known strata by-laws and rules.

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2.   The commoditisation of by-laws and rules has led to higher volumes and lower quality.

A strata by-law or rule is a complex legal instrument intermediating property rights in a strata title building.  It should be drafted by legally trained people who understand and have experience with strata laws and strata building operations.

But, like most things in the strata business world, many people who are drafting and registering strata by-laws and rules are competing for the work by reducing prices, offering packages and/or selling DIY versions. 

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3.   Technology makes wordiness easier leading to longer and longer strata by-laws and rules that are harder to interpret and understand.

I was taught 2 things about drafting legal instruments at the beginning of my professional career.

First, you should make the legal instruments you prepare as simple as possible to achieve the desired outcome.

Second, you should draft everything with the mindset that a Supreme or High Court judge will end up reading it.

I’ve written about what happens under the second rule when the NSW Supreme Court looked at a simple pet by-law in my article about Coopers Case ‘name’ where the Court was very critical of the drafting of that by-law despite its simplicity in The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law.

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4.   The courts have warned us about strata by-laws and rule limits [more than once] so we should be paying attention.

There’s been a series of superior Court decisions that have analysed strata by-laws and rules that have surprised people along the way with judgements permitting by-laws that no one thought were valid [in White’s case] and that other popular by-laws were invalid [in Cooper’s case].

For instance, some of the things that were said in Cooper’s case were as follows and gave everyone clear guidance about the limits of behavioural controls in by-laws and rules.

• The power to make by-laws is inherently constrained by the indefeasible nature of owners’ property rights.

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5.   Most strata by-laws and rules are honoured in the breach [or by ignorance] rather than because they’re valid.

Since most strata stakeholders don’t know the strata laws and aren’t reading strata cases, they can’t tell if a strata by-law or rule is valid or not. 

Plus, land title registry processes require registration but don’t involve or give them validation.

So, it’s likely that most people will believe a strata by-law or rule is valid if it’s registered and act on the basis that it must be valid and effective. 

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6.   Subordinate legislation isn’t easy to write [even government lawyers whose job it is to do this every day can get it wrong].

Since strata by-laws and rules have legal effects and many commentators talk about strata buildings being a fourth tier of government [which I don’t agree with], writing by-laws is a bit like writing other kinds of laws.

That’s not easy. 

State and Federal governments have teams of highly trained lawyers that do that [and only that] every day.  Yet, even, those statutes contain errors and uncertainty and regularly have to be interpreted by Courts or get overruled including in relation to strata title issues like they did in Vickery’s Case which you can read about in the Case Watch Lot Owner Damages Claims Clarified.

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7.   Strata by-laws and rule making give committees and managers something to do.

I believe that many strata committees and managers are and feel disempowered to effectively manage strata buildings due to long term law reform trends shifting decision making control to strata owners and the strata management sector’s hands-off approach to risk management [which I’ll be writing about soon].

So, strata committees and managers are looking for and need something to do in strata buildings to keep them busy, appear relevant and validate their decision to be a committee member or to appear more valuable as strata manager.

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8.   Profit motives by service providers lead to more new strata by-laws and rules [and more tinkering with existing strata by-laws and rules].

Drafting and registering strata by-laws and rules is a commercial exercise for the lawyers, non-lawyers and managers who do it.

So, they’re all incentivised to market, promote and sell services to make new strata by-laws and rules and to keep tinkering with existing strata by-laws and rules.

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9.   It’s a waste of strata resources [time and money].

Making unnecessary, ineffective and unnecessary strata by-laws and rules is a huge waste of strata building resources.

It’s not just the external charges for the strata by-laws and rules that are wasted, but think of the time spent by:

• strata committees and managers discussing and deciding about by-law changes,

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10.  Strata by-laws and rules should be simpler and do more limited things [less is more].

As I’ve said in Item 3, legal instruments should be as simple as possible to achieve the desired outcome as that will make them easier to understand and more likely to be effective.

That means the following things for strata by-laws and rules as they force drafters to think harder and they make it easier for strata stakeholders to understand them.

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11.  Communicating by-law or rule existence and compliance guidelines would be a better strategy.

Rather, than making more strata by-laws or rules that aren’t effective, I recommend putting all that effort and money into better communication with strata owners and residents about existing strata by-laws or rules to increase awareness and compliance levels.

An effective communication and education campaign would do that as well as improve the standing and reputation of strata committees and strata managers. 

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12. There’s usually an existing strata law or mechanism to deal with the issue anyway, so a by-law isn’t really needed.

In many cases, I’ve seen strata by-laws or rules being made to address issues that are already covered in the strata laws or other laws.  Why is that happening?

For example, the societal shift against smoking has led to many no-smoking strata by-laws or rules being made [even if Cooper’s case puts them in doubt] which is probably unnecessary

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13. Enforcement hurdles and dilemmas make most strata by-laws and rules moot.

What is the point of a strata by-law or rule that can’t be enforced?

In most Australian states, strata by-laws or rules are generally enforced by seeking orders [and sometimes penalties] in specialist Tribunals [like NCAT, VACT, QCAT, etc].  But, those processes are slow and uncertain and the sanctions are limited [they only last for limited periods, impose relatively small fines or penalties, and, the fines/penalties don’t go to the strata building].

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CONCLUSIONS

So, as important as by-laws and rules are in strata title buildings, they aren’t always the best or even a good solution to problems or issues. 

However, it seems that strata stakeholders [including the professionals] still think they’re the panacea for all strata ills.

It’s time they ditch their strata by-law and rule hammers for more strata information and education, better application of existing strata and other laws, and more modern, specialised and useful tools.

December 12, 2023

Francesco ...