By-laws governing moving in/out of property

@Donswayze said:

Q1 – Can they enforce that you must use a professional removals company?

Yes, just as they can insist that your use qualified and licensed tradespeople.

Q2 – Can they limit your choice to use only their nominated removal company?

No – unless there a specific issues with the building that require skills that only the nominated company possesses.  They could try to enforce it but any breach notice would probably be knocked over in NCAT as being unreasonably restrictive and may actually be a restraint of trade.  A better by-law would allow for a hefty deposit before the move, and an inspection of common property before and after.

Q3 – Can additional by-laws apply to me given I am an existing tenant?

Yes, but they can’t be retrospective.  For instance, a by-law banning pets can’t be enforced on pets already in the building because that relates to an action that has already happened (bringing in a pet).  However, they could bring in a by-law to take action against barking dogs because that relates to actions in the future that could be prevented.    

Q4 – Does the fact that I am on a rolling arrangement outside of the initial lease agreement waive any of my requirements to comply?

No, unless it materially affects the terms of your original lease.  For instance, if they decided to close the gym at 5pm instead of 10 pm and you were a frequent user at 7 pm and had rented on that basis, you would have a valid complaint. In that case your redress would be with the landlord for loss of amenity.  But if they banned smoking on the balconies, for instance, you would be hard pressed to argue that you were already a balcony smoker and so it didn’t apply to you (although I’m sure many smokers would say exactly that).

@JimmyT said:

Q2 – Can they limit your choice to use only their nominated removal company?

No – unless there a specific issues with the building that require skills that only the nominated company possesses.  They could try to enforce it but any breach notice would probably be knocked over in NCAT as being unreasonably restrictive and may actually be a restraint of trade.  A better by-law would allow for a hefty deposit before the move, and an inspection of common property before and after.

Sorry Jim, but I would have to disagree with you on that one.

It is well established that the doctrine of “restraint of trade” has no application to by-laws in a strata scheme: Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) 5 BPR 11,436 per Young J at 11,441-11442.

And there are other ways to enforce breach of a by-law. One other way is to apply for interim orders restraining a breach of a by-law, which could be granted if a lot owner/occupier has informed the owners corporation that he/she intends to breach a by-law and the by-law is in clear terms. Here is a  reported story on that: https://www.stratalive.com.au/article/news/strata-news/2013/07/bylaws-prohibiting-onsite-auctions

If one then breaches an order of an adjudicator to comply with a by-law, then one could face fines up to $5,500 for non compliance with the order (as well as being liable for the owners corporation’s legal costs in the matter). Not sure if that is a path one wants to go down.

Q3 – Can additional by-laws apply to me given I am an existing tenant?

Yes, but they can’t be retrospective.  For instance, a by-law banning pets can’t be enforced on pets already in the building because that relates to an action that has already happened (bringing in a pet).  However, they could bring in a by-law to take action against barking dogs because that relates to actions in the future that could be prevented.   

That really depends on the terms of the by-law. But I will say that your last sentence is contradictory to the one before it. There is no reason why the very act of keeping a pet couldn’t be one that “relates to actions in the future that could be prevented”. This is because, if a pet is removed from the parcel then the act is “prevented” as it is no longer “kept” on the parcel.

In short, yes, a by-law can be made to have a retrospective effect to prohibit pets being kept on the parcel. Its practical effect is probably harsh, but that is the reality of the legislation which specifically envisages an owners corporation passing a by-law to prohibit animals being kept on the parcel. One would hope that members of the owners corporation have at least a little humanity within them to not pass such a by-law.

@scotlandx said:
In relation to pets, that is not correct mini and is established law.

Daniel Russell, one of the leading strata lawyers, says otherwise (on another website)

As I said, it really depends on the terms of the by-law. Namely whether the by-law has a “savings provision” or “grandfather clause”.

I don’t believe an OC can mandate the tradespeople residents can use, i.e they must use a particular one.

In answer I would simply refer you to the passage of Campbell JA in White v Betalli at [205] (who formed the majority in that case):

“There is nothing in the notion of a by-law that, of itself, imposes any kind of limitation on the kind of regulation that might be adopted, beyond that it is for the regulation of the particular community to which it applies. Any limitation on the type of restriction or regulation that can be a by-law must arise from the statute that enables the by-laws to be created, or from the general framework of statute law, common law and equity within which that local community is created and administered.”

The passage was also approved in another decision of the Court of Appeal.

Quite clearly, an owners corporation can “mandate the tradesperson residents can use” through by-laws.

@scotlandx said:
He doesn’t say anything of the sort mini – in that post he says:

One of those distinctions is between “retrospective” application of a new law to past events, and the “saving”, or continued operation of old law to new events. There is fairly common tendency to conflate the two concepts .

That is precisely what you have done.  Also the discussion is in relation to someone who got approval, but didn’t get a dog, and then the old by-law was replaced with one that prevented keeping of animals.  Mr Russell’s view was that the consent under the old by-law no longer applied because of that.  The person would have had a right accrued under the old by-law, if they had brought a dog in in reliance on the consent under the old by-law.

Did you read his second post, on the second page? And I don’t read his posts to say that “The person would have had a right accrued under the old by-law, if they had brought a dog in in reliance on the consent under the old by-law.” There’s simply nothing in his first or second post which says that. In particular he concludes with:

“In this case the words “must not keep a dog” are similarly clear. Which brings me back to the view that a clear savings provision would need to have been included, which is not the case.”

I think it’s quite clear. That is, unless if a “savings” provision was included in that case then the “old consent” doesn’t have any effect (i.e. the words “must not keep an animal” says what it means and means what it says).

I don’t think you have read White v Bettali very carefully – it says that the limitations on the kind of regulations that may be set by by-laws arise from the statute that permit them to be made.  I don’t think it was ever the intention of the legislature that strata law could be used to prescribe the exact removals company that may be used by a resident.

See White v Betalli at first instance at [37] per White J:

“37 In my view, the only limitations on the power of the owner of land being subdivided by a strata scheme of subdivision after 1 July 1997 to make by-laws are:

(a) the need for the consent of mortgagees and other holders of security under ss 8(4C) and 16 of the Strata Schemes (Freehold Development) Act;

(b) the express restrictions and prohibitions in s 49 of the Strata Schemes Management Act;

(c) the need to avoid inconsistency with any Act or law; and

(d) that the provision is made for a proper purpose and fairly falls within the concept of a by-law, that is, the regulation of the rights and responsibilities of lot owners, occupiers, or the owners corporation, in respect of the lots, or the lots and common property, for the strata scheme.”

I don’t see how a by-law restricting the use to a specific removalist company infringes upon any of those four points (similar to how, an owners corporation, in theory, could make a by-law requiring lot owners to pay additional contributions above their usual levy contributions, and not in accordance with unit entitlement).

And in any case, White J went onto say at [44] that:

“44 By-laws frequently interfere with the rights of property of an owner of a lot. In Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432, the Court of Appeal upheld the validity of a by-law which prohibited a proprietor or occupier of a lot from engaging in any enterprise other than the practice of medicine, but excluding the practice of pathology. It was held that the power in s 58(2) of the Strata Titles Act enabling by-laws to be made for the purpose of, inter alia, the use of lots, extended to regulating what activities could and could not be conducted on each lot. The Court (at 11,443 and 11,434) rejected the argument that subs 58(2) of the Strata Titles Act (the predecessor to s 47 of the Strata Schemes Management Act) only permitted the making of “non-discriminating by-laws” which equally affected all lots.”

And then his Honour concluded that an owners corporation, in theory, could make a by-law allowing a lot owner to use another owner’s lot without their consent.

Quite clearly, the cases show that an owners corporation has very wide powers to make by-laws. Given that the doctrine of “restraint of trade” has no application to by-laws, then, I don’t see why a by-law couldn’t be made to restricting the choice of a removalist of a lot owner to one specific removalist company.

@mini said:

@scotlandx said:
In relation to pets, that is not correct mini and is established law.

Daniel Russell, one of the leading strata lawyers, says otherwise (on another website). As I said, it really depends on the terms of the by-law. Namely whether the by-law has a “savings provision” or “grandfather clause”.

I’m sure Daniel is a fine lawyer, but if lawyers agreed on everything there would be no need for courts of law.  Lawyers never give instructions, they offer “advice”.  You “instruct” the lawyer, they “advise” you.

In any case, mini, your posts are getting longer and more tortuous in an effort to do what?  Win an argument?  

Here at Flat Chat we’d rather get to the facts than indulge in a Bush Lawyer debate.  This item is now closed.  And if you want to keep scratching your amateur attorney itch, I suggest you go to the website you referenced earlier – I believe they will run any old twaddle at whatever length it’s provided.

Case closed.