The cynics amongst us might complain there’s no utility in creating magnificent by-laws where the enforcement process is so laboursome. But wouldn’t you prefer to emerge victorious from your one-year battle than to wipe the egg from your face as an adjudicator tells you the by-law you were seeking to rely upon to prevent the unruly tenant’s Rottweiler bathing in the swimming pool was invalid?
The idealists, on the other hand, equate by-laws to the Magna Carta – the sacred parchments eliciting a willingness in their citizens, regardless of status, to obey the rules of the land in a united quest for law and order. Shout out to the band of rebellious barons who outwitted the tyrannical King John in the thirteenth century and introduced medieval Britain to the rule of law!
Because the Magna Carta has stood the test of time as the foundation of common law, its principles, including that the law must be clear, known and enforced, provide a good reference for drafting by-laws. Here are five tips to ensure your by-laws are up to scratch with those principles:
Tip 1 – Clarity
Use simple language that everyone can understand – you can’t expect someone to comply with a by-law if they don’t know what it means.
Incorporating a definitions section helps to clarify the meaning of terms used in the by-laws and keeps the by-laws concise – the less words, the more likely the by-laws will be read and understood.
Tip 2 – Validity
By-laws are invalid if they are inconsistent with the legislation.
The inclusion of a by-law in a community management statement recorded in the titles registry does not guarantee its validity – the registrar does not assess the validity of by-laws when approving a new community management statement for recording in the titles office.
Sometimes it’s easy to identify an invalid by-law – for example, where the by-law attempts to impose an obligation on a person to pay money to the body corporate.
Other times it’s tricky – for example, the legislation provides by-laws must not be “oppressive and unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the common property for the scheme”. Who would have thought mental telepathy was a prerequisite to successful by-law drafting.
Tip 3 – Relevance
Although there are “standard” by-laws in the legislation, every scheme is different, and a one-size-fits-all approach is not best practice.
Some of the things to consider making sure your by-laws are relevant for your scheme are (and this is not intended to be an exhaustive list):
- the type of survey plan under which the scheme was created.
- the common facilities
- the use of the lots
- the common infrastructure
- body corporate assets
- the nature and age of the buildings
- whether there is a building manager
- the demographic of the residents
- recent disputes
Tip 4 – Rules
By-laws often include a provision allowing the committee to make rules.
Don’t be fooled – rules are not enforceable.
If you want to be able to enforce anything, it needs to be incorporated into the by-laws.
Tip 5 – Hey You!
Adopting second-person pronouns (“you” and “your”) in your by-laws in place of the standard terminology “owner or occupier” (and the third-person pronouns “they” and “them”) is more likely to engage the reader.
Decide for yourself which of the following statements makes the greater impact:
“You must read this article before you die”.
“The owner or occupier of a lot and their guests, children, agents, contractors, employees and licensees must read this article before he, she, they or it dies”.
Fine-tuning your by-laws with reference to these tips will take you one step closer to our mission statement – bringing harmony to strata living.