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Hi Guys
I’m in Sydney(NSW strata laws). My building has 2-potential areas for recreational events 1)Swimming pool 2) Some Grass area on common property.
Only problem is the swimming pool is the only area that is regulated with signs and rules, and a fence so “recreational behaviour” at the pool is regulated and enclosed in reality. The grass-area is not, and anarchy has set in amongst the unregulated set-up of the grassed-area at this stage. Why the anarchy?
1) My apartment building like many wasn’t designed to deal with small children and young families(it’s an old style 1960’s New York high rise), planning standards were different, and as we know houses cheaper and not as many families lived in Apt-Buildings. Times as we know have changed massively, last 4-years(2012-16) massive increase in young families with kids in building.
They have turned the grass common-property into a school playground, after school/or kindergarten they all run out and play(with multiple ball games and balls being thrown around). Children’s birthday parties, parents drinking alcohol and then all the anti-social behaviour and consequences that happen as a result (swearing/arguments/lack of approbate parental supervision of children set’s in). Tradesman work on the building during the week on common-property, and balls are flying everywhere often. I’m especially worried that during school holidays when kids will be at home, a child will be hit by a tradesman’s car, as the Tradies car-park(visitors car park) of the building is right next to some of the grassed area of the area of the building, or they might bump into and have an accidental head-clash with a tradie, and drunk parents don’t help at the children’s birthday parties/picnics they have(frolicking in the midday-sun on booze, forgetting about the kids-lack of parental supervision setting in). Plus the sport-balls of many shapes and sizes and hardness (from cricket balls-to tennis balls to soccer balls) hitting other residents walking past. I’m worried as well the balls will hit a resident’s window, and that can cause serious injury and death.
I have written to my “OC” for these common-property issues to be tabled at next month’s Executive committee meeting. I want a ban on “recreational events” on common property, except for at the swimming pool(which is properly regulated and enclosed/suitable and safe, and signs etc). As no where else on the CP of my building do I deem as safe for “recreational events” to happen and be suitably regulated for the reasons I’ve given.
I suppose the question I pose to Flat-Chat members is, what are the chances of the OC putting a ban on “recreational events” on CP except for the outdoor swimming-pool? If not a ban will they put up signs outside/or put in CP rules e.g. No alcohol. They have all these type of signs in my building’s swimming pool e.g. Alcohol Ban/No Barbecues etc. So some feedback guys would be valued, as I’m very curious what the Executive-Commitee will do, thanks guys.
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Many buildings have by-laws that either don’t allow children to play on common property or forbid them from doing so unsupervised by an adult.
It is perfectly legal for Owners Corps to regulate the use of common property in this way. Hypothetically, if a child was injured or caused damage while playing on common property, the Owners Corp could be liable for damages for NOT regulating the use of CP.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Sorry. I can’t agree that a strata scheme could reasonably place a total and unconditional ban on children from using the grassed common property based on the following reasons:
- It would be unreasonable to discriminate against one category of occupant from using the common property whilst allowing another category.
- Model by-laws from the SSMA state:
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
- The by-law could be strengthened by placing an age minimum such as 12 years on unsupervised activities, or, if the common property is adjacent to glass windows placing a ban on activities involving balls such as soccer, cricket, rugby, AFL, baseballs etc. Sponge ball should be allowed.
- Noise, nuisance, damage to common property, behaviour of occupants and invitees by-laws should already exist within your scheme.
- Banning all recreational activities is not reasonable. Reading and knitting are recreational activities too.
- Other than for retirement village strata schemes, by-laws are not allowed to restrict or prevent children living in a strata scheme.
The issue in Matt’s scheme appears to be enforcement of the by-laws that already exist. Schemes can have the strictest by-laws reasonably possible but unless they are enforced they are worthless.
The owners corporation may also need to consider erecting a fence between the car park and the car park, or erecting a cautionary sign at the entrance to car park indicating that children may be present.
Yes the OC can regulate the use of its common property and what happens on it – because it is common property and the OC is highly likely to be liable for anything that happens on it. That could prove to be very expensive.
I suggest your starting point is your insurer – they need to be advised about what is going on, and you should seek confirmation that the OC is covered for the ambit of those activities. I would guess that they will say no. That gives you a very good basis for bringing things under control.
Children playing with balls on the grassed areas is something we encourage in our OC.
Common property within a scheme is owned by all lot owners as tenants in common.Therefore, all lot owners and occupiers are entitled to reasonable use and enjoyment of common property.
If your scheme is using the Model By-Laws they will state:
7 Children playing on common property in building
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
Note : This by-law was previously by-law 18 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 19 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .
An owner or occupier must make sure any child under their control does not play on common property areas inside the building. Children must be supervised by an adult when on common property laundries, car parking areas or other areas dangerous to children.
Please note that this does not stop children from playing unsupervised on common property areas outside the building that are not dangerous (eg. a lawn).
Generally speaking the public Liability policy for the strata scheme protects the strata scheme when they are found to be legally liable for personal injury including the legal defence in respect of any allegations of negligence. Check with the insurer of your scheme however as some may be different.
See here for advice from the NSW Office of Fair Trade : https://www.homehunters.com.au/completehome/images/Buying-Into-a-Strata-Scheme.pdf
Every scheme has its own by-laws and they are the only ones that are relevant to that scheme, however, for the record, here. below are the relevant model (optional) by-laws for new schemes and the mandatory by-laws for pre-1996 schemes. In the latter case, these model by-laws apply unless there is a different by-law in place, covering the same topic.
By-laws for new schemes
8 Children playing on common property
(1)Any child for whom an owner or occupier of a lot is responsible may play on any area of the common property that is designated by the owners corporation for that purpose but may only use an area designated for swimming while under adult supervision.
(2)An owner or occupier of a lot must not permit any child for whom the owner or occupier is responsible, unless accompanied by an adult exercising effective control, to be or remain on common property that is a laundry, car parking area or other area of possible danger or hazard to children.By-laws for pre-1996 schemes
7 Children playing on common property in building
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
Note. This by-law was previously by-law 18 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 19 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.As to the question, what by-law says a lawn isn’t dangerous, the question really is, ‘who says it is?’ If you want to ban children from playing unsupervised on a lawn then pass a by-law saying that. There are other by-laws about noise and behaviour that might be more relevant in the circumstances described above.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
proudsceptic – the common property is not owned by the lot owners as tenants in common – if it were the owners could each deal with it as they pleased, which would have interesting results.
The common property is owned by the strata scheme. Any interest that the owners have (or each of the owners) is analogous to a trust, with the owners corporation having certain duties to the owners, including acting in the interests of the owners as a whole as regards the common property.
There seems to have been a focus on children playing on the lawn in this discussion – I am not rabidly anti-children, however if the owners corporation allows activities on the common property they need to assess the risks associated with those activities.
Of more concern to me is the combination of children playing, parties, alcohol consumption and tradesmen operating on the common property with what appears to be no oversight. That is a dangerous mix.
Please carefully read the model by-laws for Children Playing on Common Property both for existing schemes and new schemes.
The necessity of adult supervision of children playing on common property is only on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
Therefore all areas not within the categories stated do not require adult supervision. A lawned area of common property is unlikely to be a hazardous or dangerous to children therefore would not require adult supervision.
One of the significant changes to strata legislation in NSW is Section 139(1).
Section 139(1) provides:
A by-law must not be harsh, unconscionable or oppressive.
This is a new requirement. If a by-law is harsh, unconscionable or oppressive, then owners and occupiers may (depending upon its terms) be entitled to simply ignore it entirely, or at least ignore those parts that are harsh, unconscionable or oppressive.
By-laws aimed at reducing insurance premiums are now legally required to consider balancing that with the needs of their child residents.
‘As more children spend entire childhoods in strata schemes, we are going to have to think through these issues properly. We are going to have to stop using the simplistic assumption that so long as a rule has been voluntarily agreed to by the appropriate majority, it is a valid rule.
Like all property law, bylaws do not regulate land, they regulate people’s use of land, and amount to a power to regulate people’s lives. We cannot allow private citizens to regulate other people’s lives guided solely by their own self-interest. For children living in adult-dominated schemes, that is a recipe for disaster.’
Extract from ‘Strata laws should take care of children who call apartments home’ written by Dr Cathy Sherry who is a Senior Lecturer, Faculty of Law, UNSW and the author of Strata Title Property Rights: Private governance of multi-owned communities (Routledge, London, 2016).
Re Nuisance –
The legal definition of ‘nuisance’ is very different from the everyday meaning. For a noise to be construed as a nuisance’ it needs to be:
- frequent or persistent
- something a reasonable person with no particular sensitivity would be affected by.
- out of context or unanticipated (e.g. neighbours walking past your front door talking loudly may not count – even though it may be loud and intrusive)
- documented with substantial evidence of some sort
When you look at a legislative provision such as section 139(1), you then need to look at the remedy or consequences that may flow from the breach.
The note to section 139(1) says that a by-law (that is harsh, unconscionable or oppressive) may be invalidated by the Tribunal.
So if an OC makes a by-law that you believe is harsh, unconscionable or oppressive then you would need to make an application to the Tribunal to have it declared invalid.
We don’t know the test that a Tribunal might apply in such a case, but it is reasonable to assume that the Tribunal would look at the circumstances of the strata scheme as a whole, and balance the interests of all of the owners in reaching any conclusion. “Harsh, unconscionable or oppressive” are pretty extreme, compare a term such as “unreasonable”.
Importantly – the section does not mean that if an OC puts in a by-law that you don’t like, for whatever reason, that you can just ignore it, either entirely or in part. If you do that, then you are breaching the by-law. If it bothers you that much, then you can make an application to have it declared invalid, and then you would have to satisfy the Tribunal that it falls within the terms of section 139(1).
There is no legal requirement to balance the specific needs of children as distinct from any other class of resident of a strata scheme. If there were, it would be in the strata legislation. An opinion written by a legal academic, however well qualified, does not constitute a legal requirement. The interests of children resident in a strata scheme may well be considered in weighing up the interests of the owners as a whole, but that is a different matter.
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.
(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.
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