Not Every Strata Problem is a Nail (NSW)

Or, stopping hammering by-laws and rules as the one size fits all solution…

25 years ago, I popularised by-laws as a great way to customise strata building operations. But the proliferation of strata by-laws and strata rules since then has gone too far; leading to unnecessary, inappropriate, and invalid by-laws and rules with strata stakeholders placing undue reliance on them to fix strata problems.

Introduction

You’ve probably heard of Maslow and his hierarchy of needs. But, Maslow also popularised another cognitive theory called the ‘law of the instrument’ or the ‘Birmingham screwdriver’ that says:

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

which refers to the practice of using one tool for all purposes.

Well, I’m starting to worry that too many of our strata mechanics think their by-law hammer can fix everything that happens in strata buildings.

I’ve had to review a few by-laws recently and found some serious flaws in a surprising number of them. Plus, many of them are poorly written [verbose, overly formal, and unstructured].

Here are a few examples of unnecessary [or worse] use of by-laws and rules I’ve come across [plus the problems with them].

A. A by-law that restricts the number of people in strata lots or that use common property facilities to stop overuse by non-residents.

This kind of by-law is intended to prevent overuse of common property facilities like a gym or pool particularly by non-owners or non-residents as it’s somehow considered unfair even though strata owners and tenants have unfettered property rights to have invitees in their lots and the common property.

That’s also despite the very limited scope that the untested provisions of s 137 and r 36 of the strata laws appear to give by-laws limiting the number of adults who can reside in a strata lot.

So, there are serious doubts about by-law validity and I’m unsure how it would be policed or enforced. I guess those strata buildings will limit fob or other device access which opens another legal can of worms.

B. A by-law that requires polite communications between strata owners and others and excuses committees, managers, etc from responding to infringing contacts.

I suspect a rude strata owner would not know [or care] about a politeness by-law, But, I guess the strata committee could respond to rude contact by sending the strata owner a copy of the politeness by-law [as if that will work]. And, to the extent that the strata laws require strata corporations to respond to or deal with strata owner requests, a by-law saying they don’t need to will be invalid.

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

C. A strata by-law or rule restricting the installation of and prescribing controls over internal blinds and curtains.

These kinds of strata by-laws or rules are Intended to provide a more uniform appearance to the strata building when viewed from outside. But, there’s already a standard appearance by-law that could deal with appearance issues and, in New South Wales, the new cosmetic and minor alterations provisions allow blinds and curtains alterations without approval so the by-law would be ineffective.

Frankly, invalid and poorly written by-laws are a waste of time as they’re never going to fix any problems and will actually 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 even though it’s increasingly likely that some statutory by-laws might be invalid and they should have learned by now that generic by-laws and rules don’t easily apply to all strata buildings and overly detailed by-laws and rules apply awkwardly to many strata buildings.

My thoughts about by-law and rule proliferation in strata buildings

So, why is this happening and what can and should be done?

Here are my 13 thoughts about by-laws and rules. They’re shortlisted in this article but are discussed in more detail in the paid subscriber version.

If you want to become a paid subscriber you can do so here.

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

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

3. Technology makes wordiness easier leading to longer and longer strata by-laws and rules that are harder to interpret and understand.

4. The courts have warned us about strata by-law and rule limits [more than once] so we should be paying attention.

5. Most strata by-laws and rules are honoured in the breach [or by ignorance] rather than because they’re valid.

6. Subordinate legislation isn’t easy to write [even government lawyers whose job it is to do this every day can get it wrong].

7. Strata by-law and rule making give committees and managers something to do.

8. Profit motives by service providers lead to more new strata by-laws and rules [and more tinkering with existing strata by-laws and rules].

9. It’s a waste of strata resources [time and money].

10. Strata by-laws and rules should be simpler and do more limited things [less is more].

11. Communicating by-law or rule existence and compliance guidelines would be a better strategy.

12. There’s usually an existing strata law or mechanism to deal with the issue anyway, so a by-law isn’t really needed.

13. Enforcement hurdles and dilemmas make most strata by-laws and rules moot.

Conclusion

Maybe it’s time to ditch the strata by-law and rule hammers for more modern, specialised, and useful tools.

This article was contributed by Francesco Andreone, Go Strata.