- This topic has 7 replies, 5 voices, and was last updated 8 months ago by .
Our Owners Corporation reviewed all our bylaws as required post-2015 (when the new Strata legislation came in force), which led to an almost total re-write of many old bylaws. The then-Committee used the exercise in part to dramatically expand its powers in many areas of building management, a few of which I took issue with at the time – but as there had been little prior consultation and as the owners had 30+ new or re-written bylaws to consider at the 2017 AGM (along with all the other normal AGM business) most were simply waved through at the time.
Almost three years have passed since the 2017 AGM and we now have a different Committee of which I’m one of six (although there are still three others who were part of the 2017 Committee). There is now a (very small) appetite to review the 2017 bylaws, and one in particular strikes me as an ongoing problem. This bylaw, entitled “Rules in Building”, reads as follows:
25.1 The Strata Committee may make Rules about the security, control, management, operation, use and enjoyment of the (name of building) and the Recreational Facilities.
25.2 The Rules may not be harsh or oppressive.
25.3 The Strata Committee may add to, delete or change the Rules at any time.
25.4 The Owners Corporation may add to, delete or change the Rules made by the Strata Committee at a duly convened general meeting.
25.5 An Owner or Occupier must comply with the Rules.
Now my (non-legal) mind tells me that there is in practice no difference between a bylaw and a “rule” – certainly the Act does not mention “rules” as a sub-set of bylaws. Of course, bylaws have to go to a General Meeting of all Lot owners and be approved by a 75% majority, and be registered, before they become enforceable.
This bylaw, however, attempts to give the Strata Committee extremely broad powers to make rules (bylaws?) on just about anything they please, although there is the ability for them to be changed at a subsequent General Meeting. It is also of note that the wording of our bylaw is almost a direct lift from the By-law Division of the Act (specifically 136 and 139)
Similar powers have been added to many other bylaws. For example, most recently, this delegated power to make rules has been used by the Committee (without my vote) to decide that access to the visitors parking area can be denied for breaches of the parking bylaw through de-activation of swipe access – one month “lockout” for the first breach, three months for the second breach, and so on.
Of course there’s a whole separate issue here about the legality of deactivating keycards accessing common areas, recently referred to in the front page on using this tactic for controlling STLs, but that’s for another post.
So, my basic question is: In NSW, is there such a thing as a strata/house “rule” that can be created and enforced by the SC without first being approved at a General Meeting, and if so, are there restrictions on how broadly or on what matters they can apply?
A further question is: Is it possible for the Owners Corporation, through the creation of a bylaw, to effectively delegate the making of bylaws to the Committee (even if they are re-badged as “rules”)?
I would suspect not, as 36.3(a) of the Act clearly states that a Strata Committee cannot make decisions on matters where the Act requires a special resolution of the OC, so unless rules are somehow not considered bylaws then any rule/bylaw can only be made by special resolution at a General Meeting.
I’m looking forward to seeing your responses.
- This topic was modified 8 months ago by .
- You must be logged in to reply to this topic.