Floor Coverings missing - New By-laws for Old Schemes - can it be removed? | Hard floors and tough decisions | Flat Chat Forum: Your Questions Answered




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Floor Coverings missing - New By-laws for Old Schemes - can it be removed?
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communityresident
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19/06/2017 - 12:20 am
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Dear Jimmy / Flat Chat

Need your brain power on the "New By-laws for Old Schemes - Schedule 2 By-laws for pre-1996 strata schemes" please!  We received our new replacement by-laws for our 1996 strata scheme.  Just wondering if it is possible for a Strata to remove the By-Law "14. Floor Coverings"?  I assume from what I can understand at this time of night it can't be removed it is a standard Gov't. Law applying, is this correct?

I'm not sure if it is a mistake it being missing from the new documentation on Schedule 3, or if it has been taken out or purpose.  It would suit quite a few who have put in cheap floating floors over the years and continually scrape chairs when they have the entire family over every other week for the day...  One neighbour who has been a great tenant / resident for a long time was told by EC member there was nothing they could do about the noise from another neighbour upstairs with continual noise (they didn't know that the EC member has cheap wood flooring as well until I told them).

Thank you.

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JimmyT
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19/06/2017 - 9:34 am
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I may be wrong but my understanding is that the "old schemes" by-laws apply automatically where there is no by-law in place covering that topic.

In this instance, if there was a legitimate registered by-law saying anything about flooring, then the  "standard" by-law would not apply.  For instance you could have a by-law saying specifically that By-law 14 was being removed.

But if a previous regime had simply removed the by-law, then the renewed one would slot into the gap.

Having said that, I am really not sure, so would welcome other input.

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communityresident
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19/06/2017 - 12:22 pm
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Thanks Jimmy for a very prompt response.  Hopefully it is just a mistake on the behalf of the Strata who sent the documents out - wrong day of the week was put with the date of meeting... however put up yesterday with screeching from the flooring majority of the day

Cheap floating floors should be banned in units but it looks so nice and we have allergies I hear already!

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Sir Humphrey
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19/06/2017 - 12:43 pm
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Not really answering the question and coming from an ACT perspective: 

When we had a new version of the Act, with a new set of default rules (aka by-laws or articles), older owners corporations from before a certain date had the option to adopt the new set by appropriate resolution but otherwise their pre-existing rules would remain in force. 

This prompted our OC to review our existing rules. Some were novel and customised for our particular OC back in the 1970s and had no equivalent in the old or new default sets. Some of those remain useful and were left alone and remain in effect.

Some other old rules were rescinded because they were no longer of any effect because they referred to no longer relevant circumstances (eg. were only relevant during the early development of the site) or because the matters they covered were now covered by provisions of the Act. In the latter cases, it did not matter what our rules said because the Act had precedence. 

Some other old rules were nearly the same as the modern default rules, differing mainly in drafting style rather than substance. For those we 'amended' the rule by adopting the wording of the new default rule. 

A few other old rules were tweaked. Eg. we had a rule of our own from the 1970s about not growing plants that could be a nuisance or noxious but it was quite ineffectual because you could always argue the toss. We kept the old rule verbatim but added on the end "...or any plant recognised as an invasive weed or a pest plant by relevant authorities in the ACT." That retained the intention of the old rule but made it much easier to point at someone's invasive weeds and say 'That plant is on the schedule of the ACT Pest Plant and Animal Act 2005' so please get rid of it. As the schedule of the Act is updated for new weeds our rule remains unequivocal. 

Other OCs just had the old default set of rules. For them the simplest might have been to pass one resolution to rescind the entire old set and adopt the entire new default set. That was not attractive to us because we had quite a few rules that were either novel and particular to us or differed in important ways from the default rules. 

I hope that helps for thinking about how to proceed. If you have an existing useful rule, I don't think it should disappear. I doubt that the Act would be set up so you can't keep old, useful rules that are novel or have been amended deliberately to differ from the default. I expect you just need to look at the right process so you avoid throwing out the baby with the bathwater. IE update selectively. 

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communityresident
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19/06/2017 - 1:27 pm
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Thank you Sir.  Yes they've tossed the lot being easier I suspect.

We had a no pets by-law before which in fact was good for those who didn't want to behave in a respectful way.  There's been a blind eye turned which no-one had a problem, including myself.  However there's always the "entitled" which I live among who ruin it for everyone else because they are just selfish to be honest and this is one way to deal with it.

The proxy farming is a great win though as now one who was doing this no longer has the power as before.  Funnily enough the person is not on the committee any longer as I imagine the incentive is gone with such a small amount of proxies able to gather.

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Sir Humphrey
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19/06/2017 - 3:38 pm
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If it is done already then you have probably lost the old rules and would need (I believe) a special resolution to get them back. However, since they were existing rules, it might be easier to get them back as it could be presented as intended to reinstate what had been the status quo while still also having the new default rule set, which does not sound unreasonable. Perhaps easier than trying to bring an entirely new set of rules. 

However, on the pets example, in the ACT at least, a blanket 'no pets' rule would be almost impossible to have since it would be almost always incompatible with a provision of the Act which says that an owners must seek permission to have a pet but it must not be unreasonably refused. As a consequence, we have rules that gives automatic permission to certain numbers of certain sorts of animals but requires explicit individual permission for any other sorts. We require any animal to under the control and supervision of a responsible person when it is on the common property but we don't ban them from the common property. This has the effect of requiring cats to be contained just like any other animal. This was the most contentious feature and very much welcomed by some but  strongly opposed by a few. Nonetheless we got our rule passed with grandfathering of the relatively small number of cats that were accustomed to roaming. 

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