• Creator
    Topic
  • #50729
    JonH
    Flatchatter

      Within our by-laws we have a renovation by-law with a number of sub clauses.  Last year two strata lawyers deemed one of the clauses to be unenforceable based on S 139 (being unjust, harsh, unconscioinable or oppressive).  In addition the lawyer who wrote the by-law advised the SC that the by-law could be challenged at NCAT.  My question is.  If one of the sub clauses of the renovation by-law is unenforceable does it mean the whole of the renovation by-law is unenforceable?

    Viewing 3 replies - 1 through 3 (of 3 total)
    • Author
      Replies
    • #50734
      Sir Humphrey
      Strataguru

        I am not a lawyer and I have not seen the by-law. However, my expectation is that the other clauses of the by-law would be enforceable if they are fairly conventional terms for approval of renovations that many owners corporations would have and they could operate independently of the possibly unenforceable term.

        #50737
        JonH
        Flatchatter
        Chat-starter

          Thank you Sir Humphrey for the advice.

          #50778
          Jimmy-T
          Keymaster

            If one of the sub clauses of the renovation by-law is unenforceable does it mean the whole of the renovation by-law is unenforceable?

            Section 136 (2) of the Act says: “A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.” (My emphasis.)

            I would interpret that as meaning it’s only the invalid bits that are invalid

            The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
          Viewing 3 replies - 1 through 3 (of 3 total)
          • You must be logged in to reply to this topic.