COVID-19: Civic Legal Client Update – 12 July 2021

Strata Titles (WA): Drafting By-Laws Strategically

31 Jul 2021

By-laws are the framework for governing a strata scheme and use of the common property. However, they do not always get the attention they deserve when they are drafted. Instead, well-worn wording is often copied and pasted with new wording, so as to achieve the cheapest ‘product’.

Where a by-law is not drafted with enough clarity, it is more likely that there will be differences of opinion and interpretation. This may lead to disputes which have to be resolved by third party intervention, i.e. in the State Administrative Tribunal (SAT).

In this article, we look at how carefully drafting by-laws can potentially prevent all sorts of problems.

'When drafting by-laws... avoid language which invites opinions and/or judgements to be made.'

Facts vs Opinions

When by-law disputes are brought before the SAT, by-laws that contain unclear or subjective language are fertile ground for opposing and irreconcilable interpretations.

When drafting by-laws, the first principle is to avoid language which is ambiguous or open to more than one interpretation. Instead, we can use language that reflects facts, definitions, purposes and consequences. This will reduce the scope for disputes.

Let’s look at a few examples to see how a careful choice of wording can make things clearer.

Example: a by-law on noise

Imagine this kind of wording in a by-law:

“16. A proprietor, occupier or other resident of a lot shall not:-

(f) Make undue noise in or about any lot or common property;”

The expression “undue noise” is open to a wide range of interpretations. What one person considers to be an ‘undue’ level of noise might not be so to another person.

A form of wording which removes the subjective element from the by-law might look like this:

“16. A proprietor, occupier or other resident of a lot shall not:-

(f) Make such noise in or about any lot or the common property that would disturb the peaceful enjoyment of any other proprietor, occupier or other resident of a lot;”

If a strata company uses such language in its by-law, it accomplishes at least two things.

First, it removes the word ‘undue’, thereby removing scope for debate about what might constitute ‘undue noise’.

Second, if this by-law should end up being the subject of dispute in the SAT, it will be easier to identify a respectable basis for calling a witness. The witness might be the proprietor, occupier or other resident of a lot, who could  give evidence of key ascertainable facts.

In this case, one key fact would be whether the witness was disturbed by the noise. This is far better than asking the witness if he or she thought that offender made undue noise.

Example: a by-law on dress standards

“12. A proprietor, occupier or other resident of a lot shall be adequately clothed when on common property.”

The expression “adequately clothed” in this example is one that is open to interpretation. What amounts to being ‘adequately clothed’ to one person would not to another.

A form of wording which removes the subjective element from the by-law might look like this:

“12. A proprietor, occupier or other resident of a lot must not be clothed in swimwear while on the common property except when in the swimming pool area.”

This version reduces the potential for dispute. A witness could give evidence of key facts relevant to the by-law. In this case, one key fact would be whether the offender was wearing swimwear while on common property, but not the swimming pool area (or vice-versa). This is better than trying to persuade the SAT that the amount of clothing was (or was not) adequate.

Unfairly discriminatory by-laws

In the NSW case of Cooper v The Owners of Strata Plan 58068 [1], a by-law which disallowed any animal from being kept on a lot or common property, was found to be invalid. In that case, the Court of Appeal held that such a by-law was ‘harsh, unconscionable or oppressive’ to the lot owners in that strata scheme who wanted to have pets in their homes.

The statute in New South Wales governing strata properties is the Strata Schemes Management Act 2015 (NSW). The equivalent legislation in Western Australia is The Strata Titles Act 1985 (WA). Section 46(j) of this Act can invalidate a by-law that is ‘unfairly prejudicial or unfairly discriminatory’.

Example: a by-law on pets

“15. Subject to s 49 of the Strata Titles Act 1985 (WA), an owner or occupier of a lot must not keep or permit any animal to be on a lot or on the common property.”

This clause has been drafted to achieve a high level of clarity. There is no room for alternative interpretations. All elements of this provision could be proven to the SAT if required.

However, the by-law imposes a blanket ban on keeping any animal on any lot or the common property. It does not state any context. Nor does it provide any wording that suggests the reason for the ban.

An opponent of the by-law could argue that this blanket ban of all animals is unfairly prejudicial or unfairly discriminatory against lot owners who want to keep a pet. As a result, the by-law is at risk of being struck down by the SAT under section 46.

The following is potentially a form of wording that reduces that risk:

  1. Subject to s 49 of the Strata Titles Act 1985 (WA), an owner or occupier of a lot must not keep or permit any animal on a lot or on the common property if it causes any nuisance, cost or inconvenience to any other owner or occupier of any lot, or to the common property.”

This version recognises the adverse effects of keeping animals in strata complexes. It is less likely to be seen as unfairly prejudicial or unfairly discriminatory against a certain group of people. On the contrary, it can be seen as a reasonable restriction intended to increase the overall amenity of the place.

Conclusion

These are only some examples. The key takeaway is to pay attention when drafting by-laws to reduce the risk of dispute, or being struck down in the SAT. By-laws should be drafted using clear language, foresight and attention to the legal contexts.

Contact

For assistance with strata issues contact:

Anthony Quahe

Managing Principal

aquahe@civiclegal.com.au

Tel: 9200 4900

Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.

 

Reference: [1] Cooper v The Owners of  Strata Plan 58068 [2020] NSWCA 250

Article published in The WA Strata Magazine July 2021

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