Community living across Australia is changing. Each state is either in the throes of largescale public consultation or passing legislation to enhance the industry. According to Kemps Petersons Legal principal solicitor, Kavita Prasad, while the regulatory changes are good, there is one key step being overlooked. The need for all stakeholders to understand by-laws and get them right.
According to Kavita and the team at Kemps Petersons Legal (KPL), by-laws and building rules are the most fundamental and basic element of community living that people so often get wrong.
“Often owners will buy into a property, but never read their by-laws nor have them explained. This means you have a mass of owners who don’t understand their rights and obligations and what they can and can’t do when it comes to common property and sharing a vicinity. This is when you get disputes, legal battles, and you see a breakdown in harmonious community living” said Kavita.
For Kavita and the KPL team, there is a growing need for strata managers to stress the importance of by-laws. “It’s not just about making sure that owners understand their by-laws. Managers must also make owners and committees aware of the significance and impact of having well-worded, legislatively accurate, enforceable by-laws and rules.
“Disputes come in when owners feel that the by-law is too restrictive and is having an impact on their rights or the enjoyment of their space. This is when we see a situation go to the respective state tribunals, and this is often because the by-law is poorly worded or isn’t enforceable. A sure-fire way to prevent this from happening is by having affordable specialists, like KPL, draft, consolidate, and register by-laws and rules.
“For example, we had a case recently where a committee wanted to ban all dryers within the shared laundry facilities — saying no dryers whatsoever. We were able to provide them with advice that said this kind of by-law borders on being restrictive and could go to the tribunal and be contested as a legal matter. Instead, let’s put by-laws in place that allow dryers but mitigates risk. We drafted by-laws around managing fire risks such as making sure the area had adequate ventilation, fire hazard signs, extinguishers, and so on.
“Having a legal professional draft, consolidate, and register a by-law isn’t about one party power-trumping the other. It’s about giving property-specific advice that accounts for the needs of the property and those living within it,” said Kavita.