#25872
Lady Penelope
Strataguru

     

    Re children and common property: The model by law for children and common property is generally permissive except within certain parts of the common property. By laws created outside of this model may be more problematic if they are too prohibitive.

    Restrictions on by laws can be found at Section 139:

    (1) By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.

    Note : Any such by-law may be invalidated by the Tribunal (see section 150).

    It will be interesting to see strata case law evolve to provide clarity and guidance to the legal meaning of “unjust” and ” harsh, unconscionable or oppressive“, and to see applicable examples of these terms

    From Michael Teys and Block Lawyers provides some guidance:

    A major reform that will no doubt lead to an increase in disputes is a requirement that by-laws must not be harsh, unconscionable or oppressive.

    Owners corporations that seek to control too much of the behaviour of their owners will be caught by this provision. Although the words are well understood in the context of other law there will be shades of grey in their application to strata living.

    By-laws that seek to regulate rather than prohibit behaviour will likely survive challenges on the basis that they are harsh, unconscionable or oppressive.

    NCAT, an objective third party, can invalidate by-laws by utilising Section 150. An owner may make an application against an owner’s corporation.

    Section 150 states:

    (1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

    (2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).

    (3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.