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Rescinding By Law
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gwyn
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05/01/2018 - 1:14 pm
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Our Strata Committee voted to adopt the Model By Laws at our AGM last year.   However a majority of the Committee now feel they wish to rescind the Model By Law Clause 8  entirely.  We do not wish to impose any limitation on permitting adults or children using the Common Property for recreation purposes.  We are a complex of only 7 Lots and have an internal driveway enclosed by locked gate from the road.  We do not have a swimming pool.  

There are no permanent children in the complex but occasionally, and rarely, grandchildren or other young people visit and would like to use the driveway for riding a scooter, kicking a football, etc.  There is only one of the owners who would not agree.

My question is:  Is there any reason why a majority of Committee (or Owners?) should not be able to rescind that particular clause in the Model By Laws? 

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JimmyT
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05/01/2018 - 1:26 pm
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gwyn said
My question is:  Is there any reason why a majority of Committee (or Owners?) should not be able to rescind that particular clause in the Model By Laws?   

The simple answer is that by-laws can only be created, rescinded or changed by  a vote of 75 percent of those voting, as calculated by unit entitlements, at a general meeting.

It’s worth warning other readers here about the “ratchet effect” that comes into play.  While it takes 75 percent of votes to pass a by-law, it only takes 25 percent to block any changes.

So if you weren’t paying attention, or just wanted to go with the flow, or hadn’t considered the consequences of passing a by-law, and now wish you hadn’t, you’ll find it can be a lot harder to undo than it was to create, especially if there’s a minority of committed people who sneaked a by-law through and then will defend it to the death.

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david2708
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05/01/2018 - 1:49 pm
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I would imagine you could just turn a bit of a blind eye to that by-law if the vast majority don’t really mind the kids playing etc, and the one who doesn’t like it is not too aggrieved when it does happen to demand it cease.

Turn the place into outdoor party central and you are looking for trouble from the one person objecting, of course.

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scotlandx
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05/01/2018 - 4:12 pm
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Just to be clear – the Committee can’t change the by-laws, by-laws can only be changed by a resolution of owners at a general meeting.

This is an outside chance but if it were the Committee that purported to change the by-laws at your last AGM then that would be invalid, and your old by-laws should apply.  Of course if the change was registered then that makes it all the more difficult – perhaps I shouldn’t have raised this in the first place…

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Sir Humphrey
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07/01/2018 - 1:07 pm
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gwyn said
Our Strata Committee voted to adopt the Model By Laws at our AGM last year.

I am guessing that perhaps the members at the AGM voted to adopt the Model By Laws, not just the committee. Since you have only 7 lots, it might happen to be that every member at the AGM was a committee member but at an AGM people vote as members of the Owners Corporation, not as committee members. 

   However a majority of the Committee now feel they wish to rescind the Model By Law Clause 8  entirely… There is only one of the owners who would not agree.

My question is:  Is there any reason why a majority of Committee (or Owners?) should not be able to rescind that particular clause in the Model By Laws?   

As others have said, you can rescind that particular clause but it has to be done by the owners, not the committee, at a properly convened general meeting. Since there are only seven of you, you could easily choose informally to turn a blind eye to harmless children’s play until a convenient time to have the meeting.

You might like to also think about whether there are other matters specific to your site that should be covered by an extra by-law or perhaps your previous by-laws had something specific and useful that was inadvertently thrown out. Then call a meeting to make the changes, but it does not sound urgent. 

Once the changes have been made remember to register them. 

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JimmyT
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07/01/2018 - 2:09 pm
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Just a word of caution, if you change your by-laws to permit children to play on common property and they or anyone else is injured or their property is damaged, the owners corp could be liable.

If you just turn a blind eye to it, and don’t change the by-law, then you can always say they shouldn’t have been there in the first place.

I would be tempted to leave things exactly as they are unless the dissenter decides to take it further.

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VicRes
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08/01/2018 - 9:06 pm
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It was noted in the original post that only one resident would disagree with rescinding the by law. Ask yourself why they would disagree.

 

Do they need to sleep during the day when children are present? If so they would be disturbed by the noise no matter how occasional?

 

It is also worth noting that the composition of owners can change quickly and you may end up with a couple of families and children running about all the time.

 

With no applicable by law remedying the problem of free running children, their noise, damage from ball games etcetera the scene would be set for some interesting attempts at resolution.

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gwyn
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17/01/2018 - 11:07 am
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I note in a different post that Jimmy T stated:   ” any attempt to formalise the arrangement through by-laws could be challenged (as you can’t create a by-law that supersedes a superior law).”

We passed a By Law at our last AGM which in effect stated that each Owner of a lot in our complex (7 free-standing and separate villas)  is responsible for all the repair/maintenance/upkeep etc of anything in their own lot.  In other words, repairs to roofs, gutters, external painting etc would be paid for by the relevant owner, not the OC.

As this By Law seems to supersede what is covered in Strata Law, do you think it has legal standing.  The By Law has now been registered.

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