Enforcement of By-Laws

If it is like in the ACT, the EC can prioritise enforcement of bylaws. In a recent matter I was involved with at the ACT Tribunal, the Tribunal member readily accepted that the EC could prioritise when the respondent argued that she should not have to comply with a rules infringement when other owners had unit alterations that had not been approved. In this instance it helped that nobody had done anything remotely like this alteration. 

Decisions of the the EC are subordinate to decisions of the OC at a general meeting. If a general meeting were to resolve that a certain class of bylaw infringements should be enforced, then the EC would no longer have the discretion. I would recommend that the OC be mindful of the amount of work that it can take to deal with even one infringement if the owner wants to dig in heels, before imposing a burden on the EC to deal with every single matter. 

I think it is reasonable for a current EC to decide to tackle matters that it deems to be achievable, or most serious, or current rather than historical, or the subject of a reasonable complaint, or uncomplicated by any other similar but long-standing alteration, or any other reasonable criteria by which it might decide what to tackle first. 

Obviously the EC should try to be as fair and consistent as possible. A few years ago our EC addressed each of several instances of unapproved fences enclosing areas of common property. One was much worse than the others but we tackled all at once to be fair. To be manageable, other sorts of unapproved alterations were not addressed at that particular time. 

I am aware of a published case in the ACT where an EC lost trying to enforce a rule limiting the installation of air conditioners. It had argued that the unit owner could instead insulate better within the unit area rather than install an air conditioner partially on common property to the detriment of the appearance of the common property. Their case was undermined to some extent by other instances of similar installations in the complex. 

@JimmyT said:

You’d think so but some strata managers take the view that they are supposed to be instructed by the owners and not the other way round – which is true but often unhelpful.   

Ideally, the strata manager would not dictate but would advise the EC clearly and firmly if it thinks the EC is being unwise. Ultimately the buck stops with the EC’s decision. 

I agree, too. And it helps to be on top of the legislation when something unusual crops up because the manager does not always know. Still, I try to be respectful when saying “What about section XX.X? Doesn’t that mean we have to do it like …?”