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This topic contains 22 replies, has 6 voices, and was last updated by Sir Humphrey 3 months, 3 weeks ago.

Viewing 9 posts - 16 through 24 (of 24 total)
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  • #37758
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    questiontime10
    Flatchatter
    Chat-starter

    A person on the CA has now posted: The gym area includes the indoor pool and falls under the same community title. Obviously, there are serious liability implications if a child was to injure themselves in this part of the complex, however, there is some flexibility in the new rules:
    “….If you have a competent child that can swim laps and is training for competition, please liase with Building Management.”

    They are arguing that they didn’t need to send a notice, agenda and minutes and have it go to vote as the gym/pool area forms part of the community title. Is that correct? I still feel this amendment is unjust – what about kids who want to use the pool for exercise? No such condition is attached to adults using the pool.

    #37760
    Sir Humphrey
    Sir Humphrey
    Strataguru

    It sounds to me like the committee just got spooked by someone putting the fear of god into them that the gym area presented all sorts of immediately catastrophic liability risks.

    So, they issued some rules that they thought would get them out of this situation but they didn’t put them to a meeting for the entire owners corporation to decide. Probably correctly, they thought this would be too hard because only 25% opposing would vote it down and oppositions are always more motivated and organised. Also, their imagined huge liability risks (there are some and there would be reasonable ways the deal with them, but they are probably catastrophising) would remain until they had managed to organised a general meeting and explained their case, and their case probably did not amount to more than anxiety rather than a reasonable assessment of the risks.

    So, since they made up these rules, and since they are getting some pushback from you, they have decided they can soften a little in the hope that you will go away. They probably have good intentions but not the energy to do it all properly.

    #37768
    Jimmy-T
    Jimmy-T
    Keymaster

    I am only now realising that this is a Community Association issue (if that’s what CA means) and the law may be slightly different.  However, if there is a by-law that allows children into the pool, or no properly constituted by-law that doesn’t , then they probably still have to follow due process.

    Raise a mediation request at Fair Trading and see how the pigeons react to that cat.

    #37787
    Jimmy-T
    Jimmy-T
    Keymaster

    Having now seen the seven-page set of rules for this scheme’s fitness area and pool, and taking into account the feedback that there is no over-arching by-law to back it up,  it occurs to me that the Community Association has decided that, by compelling residents to sign an agreement that restricts their actions (and access to the pool) before they are allowed access to the fitness area, they have been given approval for this.

    I am not a lawyer, but I would say this would be worth challenging.  If there is no by-law, then it has little legal standing.  The rules include threats to remove residents from the complex and ban them for misbehaviour or not following the rules. The rules themselves are reasonable (apart from the ban on under-16s) but these sanctions go way beyond what is normally permitted in a strata scheme.

    Now, if this was a commercial operation to which residents had privileged access, that would be different.  But if, as it seems, this  is a common property asset, then I believe  the Community Association can’t restrict access to it without appropriate by-laws, agreed through the proper processes, in place.  The problem for the CA is that any such by-law might well be challenged as “harsh, oppressive and discriminatory”.

    It may be that the fitness centre has had an issue with kids being allowed to run free, unsupervised, in and around the pool.  If so, there are legitimate ways of controlling this but a blanket ban isn’t one of them.

    Also, there is the issue of the storage and security of biometric information (fingerprints) used to access the area. Given that many mobile phones and other devices can now be unlocked with fingerprints, the CA needs to address this for the benefit of all residents

    Questiontime10 and other owners would do well to have a chat with an experienced strata lawyer.

    #37814
    Avatar
    StrataLawyer
    Strataguru

    In Owners Corp OCI-POS539033E v Black [2018] VSC 337, the Victorian Supreme Court has recently upheld a VCAT decision that an owners corporation (and presumably, by analogy, a community association) provides ‘services’ in respect of common property (and community property) for the purposes of discrimination Acts – i.e. Antidiscrimination Act 1977 NSW.

    This would ground an argument that a blanket ban on under 16s using a pool is discrimination on the grounds of age.

    I also see that section 54 of the Community Lands Management Act 1989 propounds rules around restrictions on the use of community property.  However, those rules relates to limiting use to various types of lots: development, neighbourhood or strata, and do not contemplate that community property can be restricted to certain classes of persons who reside within the scheme.

    It is interesting, but I think the age restricting by-law is beyond the power of the community association.

    #37819
    Avatar
    coconnor
    Flatchatter

    I have received advice from the NSW Office of Fair trade that the policy itself is a breach of S54 of the Act. Being that in order to gain entry you must sign the policy which in and of itself creates an exclusive use restriction.

    The ban on children being a symptom of the same policy, as is the concerns on security of the bio tech.  It means that if there is no alternative to the bio tech and you don’t want to sign the policy and hand over personal details that put your security at risk, you can not access the common property.  Without doing this through a special resolution and appropriate channels, the Community Association and Strata Management are in breach of the act both for implementing illegal restrictions and not adhering to the correct process as dictated by the legislation.

    #37829
    Avatar
    Faircrack
    Flatchatter

    Well that will get you into the gym and pool but it’s my understanding that you also need your fingerprint to exit the pool as well. Is security going to stay there with you while you exercise/swim – another disgruntled resident from the same strata

     

    #37833
    Sir Humphrey
    Sir Humphrey
    Strataguru

    Needing a fingerprint to exit sounds dangerous. You should be able to exit quickly and easily in case of fire or similar emergency.

    #37878
    Avatar
    Pistonbroke
    Flatchatter

    As a consequence of the introduction of the new by-laws, have you requested a reduction of your strata levies commensurate with the dimunition of your rights to access these facilities on common property?

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