New strata legislation will fall on Chicken Little by-laws

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Such is the unrestrained nature of our owners corporations’ by-law making powers that presently in New South Wales you can make a by-law requiring people in strata units to eat pizza each Wednesday night, according to Australia’s leading strata law academic, Dr Cathy Sherry of UNSW. Proposed new laws  will require by-laws must not be ‘harsh, unconscionable or oppressive. A by-law like the one used by Cathy to make her point may or may not be ‘harsh, unconscionable or oppressive’ depending on your views about personal liberty, and perhaps being force feed pizza.

The point is we are about to go from a regime where by-laws, particularly those imposed by the original developer, may be broad and expansive to one where they are subject to limitations; limitations that have been the subject of considerable judicial interpretation but will still cause confusion in their application to strata living. Australian courts have determined that ‘unconscionable’ means something more than merely being unfair or hard commercial bargaining, it means being against conscience as judged against the norms of society and herein lies fertile grounds for argument. What crosses the line might be clear to me but not my neighbour.

‘Chicken Little’ by-laws that would have us believe the ‘Sky is Falling’ or other disaster is imminent if renovations are made to a unit will fail this new test. These rather hysterical by- laws provide for hefty bonds to be paid to secure possible damage to common property and all manner of expensive consultants’ reports and supervision by interfering strata committee members with too much time and not enough purpose in their lives. Mercifully these by-laws that are stopping people from modifying their units for the frail aged will fail the new test because they go beyond what is reasonably necessary to protect the legitimate interests of strata members. There are building codes, development approval conditions and certifying authorities for that.

This reform should be welcomed and will be sweet revenge for Henny Penny, Goosey Loosey, Ducky Lucky and all that have been stymied by fear mongering.

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