Not Every Strata Problem is a Nail

or, stopping hammering those by-laws as the everything strata solution …

Over 25 years ago, I popularised by laws as a way to customise strata building operations, perhaps too well.  But the proliferation of strata by-laws and rules since then has gone a bit too far, leading to many unnecessary, inappropriate and invalid by-laws and rules with most strata stakeholders placing undue reliance on them to fix all strata problems.  Here are some examples of bad by laws and rules, and my thoughts about the current strata by law phenomenon.

[17.25 minutes estimated read time & 3443 words]

INTRODUCTION

You’ve probably heard of Maslow and his hierarchy of needs. 

However, Maslow also popularised another cognitive theory, the ‘law of the instrument’ or the ‘Birmingham screwdriver’.

‘If all you have is a hammer, then every problem looks like a nail!’

It refers to the practice of using one tool [usually your favourite] for all purposes.

Well, I’m worried that too many strata mechanics think their by-law or rule hammer can fix everything that happens in strata buildings and are using it everywhere.

I’ve had to review a few by laws and rules recently and found some serious flaws in a surprising number of them.  Plus, many of them are poorly written [verbose, overly formal and unstructured], and others are just impractical or impossible to apply or enforce.

What gives, and why?

SOME BAD BY LAW & RULE EXAMPLES

Here are just three examples of the unnecessary, invalid or just bad use of strata by laws and rules I’ve come across [plus the problems with each of them].

But, believe me, that there are plenty more bad examples.

1. A NSW bylaw that restricts the number of people that can be in strata lots or use common property facilities that’s intended to stop overuse by non-residents

This kind of by law restricts people numbers and is intended to prevent the overuse of common property facilities like a gym or pool, particularly by non-owners or non-residents as strata buildings somehow consider it unfair that they do so.

However, strata owners and strata tenants have unfettered property rights to have guests and visitors to their lots and to use the common property, so this kind of by law is likely to infringe on their basic private property rights.

It’s also likely to be outside the very limited scope that the untested provisions in section 137 and regulation 36 of the NSW strata laws appear to give to by laws limiting the number of adults who can reside in a strata lot. 

So, there are serious doubts about the validity of that kind of by law or rule. Plus, I don’t know how it would be policed or enforced.  I guess those strata buildings will also try to limit fob or other security device access, which opens another legal can of worms.

2. A rule that requires polite communication between strata owners and others and excuses committees, managers, etc, from responding to rude contacts

This kind of rule or by law prescribes behaviour in communications and sometimes authorises strata committees, managers and others from having to respond to rude communications.

I suspect a rude strata owner would not know [or care] about a politeness by law. Or, even if the strata committee could respond by sending the strata owner a copy of the politeness by law that’s unlikely to work.

It’s very likely that trying to prescribe communication protocols isn’t within the functions of strata corporations. 

Plus, to the extent that the strata laws require strata corporations to respond to or deal with strata owner requests, a rule or by law saying they don’t need to will be invalid.

And, precisely how do you define appropriate and inappropriate communications?

Perhaps there are better ways to improve intra-strata building communications?

3. A strata by law or rule restricting the installation of and prescribing controls over apartment blinds and curtains.

These kinds of strata by laws or rules are often found in newer and more upmarket strata buildings and are intended to provide a more uniform appearance to the strata building when viewed from the outside. 

However, there are already standard appearance by laws or rules in most Australian states that deal with appearance issues in less prescriptive ways, and Cooper’s Case in NSW suggests that blanket bans in by-laws will be invalid.

Plus, in New South Wales, the strata law provisions about cosmetic and minor alterations allow blind and curtain alterations without approval so this kind of by law or rule would be ineffective to the extent it is inconsistent with those strata law permissions.

There are many many more examples of bad by laws or rules like those banning pets, Air BNB, and imposing money penalties and fines.

Frankly, invalid and poorly written by-laws and rules are a waste of strata stakeholder time as they’re never going to fix any problems and will hurt the strata building and the wider strata sector in obvious and less obvious ways.

But, even valid and properly drafted by laws may also be a waste of time because the by-laws or rules may be trying to fix problems that don’t need fixing, as they are dealing with issues where societal and legal thinking has moved on or because they can’t be effectively enforced.

And, it’s not just strata committees, strata managers or strata lawyers who love strata by-laws and rules … so do governments as they suggest more and more of them to strata buildings even though it’s increasingly likely that even some statutory by-laws might be invalid.

Plus, haven’t we learned by now that generic by laws and rules don’t apply neatly to all strata buildings and overly detailed by-laws and rules apply awkwardly to most strata buildings.

MORE ABOUT BY-LAW AND RULE PROLIFERATION

So, why is all this by law and rulemaking happening in strata buildings, and what can and should be done about it? 

Here are 13 observations about by laws and rules. 

They’re shortlisted in this article but are discussed in more detail in the paid subscriber version.

1.   Writing a rule guarantees nothing.  After all, remember King Kanute

Although there have been strata by laws and rules for a long time, some of the originals [like parking in common property spaces] are still being breached today. 

So, the mere existence of the prohibition isn’t enough to change strata owner or resident behaviour.  And that’s for fairly obvious and well-known strata by laws and rules.

So, more elaborate, esoteric, specific and one-off strata by laws and rules are even less likely to be followed.

The reason why that is has to do with a few things like:

• strata owner and resident awareness and understanding of the by-laws and rules when made and on an ongoing basis [especially as strata owners and residents change],

• poor understanding of strata committees’ expectations for compliance and a lack of guidance as to what’s expected [also on an upfront and ongoing basis], and

• attitudes towards compliance in strata buildings, and

• individual temptations to act selfishly.

So, just because there’s a by law or rule doesn’t mean anyone knows about it and/or will comply. 

After all, the sea didn’t follow Kanute’s proclamations about the tides.

2.   The commoditisation of by laws and rules has led to higher volumes and lower quality

A strata by-law or rule is a complex legal instrument intermediating property rights in a strata title building.  It should be drafted by legally trained people who understand and have experience with strata laws and strata building operations.

But, like most things in the strata business world, many people who are drafting and registering strata by laws and rules are competing for the work by reducing prices, offering packages and/or selling DIY versions. 

That’s inevitably going to reduce quality and, hence, the effectiveness and enforceability of those strata by laws and rules.

And at the same time, there’s overselling by laws by those businesses; promoting by-laws as the panacea for all strata ills, suggesting and preparing by laws that have no useful benefits, encouraging frequent by-law reviews, and, sometimes panic selling the need for by laws. 

And, finally, there’s the problem of strata by law and rule copying, where someone takes a by-law or rule they saw somewhere else and just copies it [or even worse, changes it without knowing what they’re doing] to make themselves look good, save money or pretend they know what they’re doing.  

All this just means more and more strata by laws and rules are being made that are of lower and lower quality and usefulness.