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Question for Strata Lawyers and/or Insurance broker.  Strata Plan, when registered in 1998, adopted the model by-laws as prescribed in Schedule 1 of the Act.  For some reason however it did not adopt Clause 7 prohibiting the playing of games on the common property by children.

Not a problem because for the first ten years there were few children in the plan however over the last two years the demographics have changed dramatically and there are now approximately 15  kids in the plan.

Over the last two years more and more kids have been playing games on the CP.  In the car park for example two owners have set up table tennis courts, others have gym equipment and yet others regularly play tennis against the wall as well as other ball games.  None of these activities cause damage or create a nuisance.

The EC and some owners have expressed concern but have been advised that as the plan did not adopt Clause 7 of the model by-laws the playing of games on the CP is quite lawful provided there is no damage or noise or interference with other occupants peaceful enjoyment. 

Many owners and the EC had assumed kids were not allowed to play on the CP.  When one owner tried to stop a game in progress was advised by the parents that as no by law was being broken and they were within their right to play “Ping Pong” in the car park.

An owner, concerned at the increased liability risk for owners, has proposed to adopt clause 7 of the model by-laws but it does not have strong support, particularly from the many owners with kids.

If the resolution is defeated at the EGM where does that leave the owners if someone has an accident while playing games on the CP and the OC has been negligent e.g. someone slips on an oil slick in the car park, falls down a hole in the garden area or something similar.

Questions:

1.            Has the OC has given tacit approval for the playing of games in the CP by not adopting Clause 7?

2.              Would all or any of our public liability insurance be at risk if someone was injured due to the OC's negligence while aplying games on the CP?  

3.            Could the OC argue for any contributory negligence for an injured party if they are not breaking a by-law? and

4.            Should the OC advise our insurer, under its duty of disclosure,  that the OC does not prohibit the playing of games on the CP?

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