#48216
Sir Humphrey
Strataguru

    In the ACT the term ‘rules’ is used for what is ‘by-laws’ or ‘articles’ in other jurisdictions. I expect principles remain the same. So, for example, it is possible to have a rule/bylaw/article that has been properly adopted by the correct class of general meeting resolution that has some flexibility/judgement for the committee built in.

    So, just for an example, in the set of townhouses where I live, one of our rather minor rules states: “A unit owner must only store bins for rubbish and recycling within the unit area, unit subsidiary or such other areas as may be approved from time to time by the Owners Corporation (OC). Such areas may include purpose-built bin enclosures, the carports or shared carparks on common property and other places where bins can be stored unobtrusively without affecting the use and enjoyment of another unit owner.” A similar formula is used for other rules where the OC can (dis)approve this or that.

    The Act in the ACT says that when the Act does not specify that a decision requires a resolution of a general meeting, and in the absence of a direction from the OC in the form of a general meeting resolution, then the committee exercises the functions of the OC as it considers appropriate. So, in the example above, it would be possible for an ordinary resolution of a general meeting to direct the committee to allow or disallow the storage of bins in a particular place. In the absence of such a direction, the committee can exercise its judgement about whether a unit owner storing their bin in some location would comply with the rule – the committee must decide whether storing a bin in some location is ‘unobtrusive’ and not ‘affecting the use and enjoyment of another unit owner’.

    We had a matter go to the ACT tribunal (not about bins) where our argument about a similarly formulated rule was accepted and the unit owner was ordered to comply. The decisions of the committee were constrained by OC resolutions but within those constraints, the committee could exercise the functions of the OC.