At the core of most strata conflict is someone refusing something. For example, the committee refusing to approve a pet, or an occupier refusing to comply with a by-law. Or it is even simpler than that, such as an owner refusing to pay levies or vote at a general meeting.
The legalistic approach to resolving these conflicts is a reflection of human nature: defend, or attack, depending on who is doing the refusing. Usually that is based on seemingly sensible instructions, but as I spend more time working with Chris Irons and strata clients to help them get to the core of their issues, it has become increasingly apparent to me that ‘why?’ is a question we all need to ask more.
Anyone who has dealt with small children probably remembers that stage of life where ‘why?’ is the only question they ask. It can go on endlessly, but it does make you really think about how to justify your chosen course of action that day – from why they can’t have another lolly through to a refusal to allow more screen time.
In strata, the question usually relates to issues that can be just as emotional for the person asking them.
If there is a golden rule to take out of this, it’s that blanket policies are usually a bad idea. They are unlikely to be able to cover all of the circumstances relating to any request, and in a sense they remove the ability to engage in reasonable decision-making, which as we all know, is one of the core obligations of a committee.
The rigid application of a policy without considering whether that policy fits the request is fraught with danger. Even more significantly, a blanket refusal is usually seen by adjudicators as a prime example of being unreasonable.
For the purposes of this article, I thought I would rattle through some of the more common reasons for refusals we all might see. You can rest assured that I am poking the bear a bit with this article, but I think committees need to be ready to understand the framework in which they lawfully must operate.
Try some of these:
Because it has always been done this way
If there was ever a blanket policy that doesn’t work, it is this. Adjudicators have repeatedly held that if a mistake is made, that doesn’t mean that it must continue to be perpetuated. That might then lead to inconsistency in an approach, and expose previous decision makers to question, but it is what it is.
We don’t like it
The perfect reason for a ‘why?’ question. Don’t be Pauline Hanson and her famous ‘I don’t like it’ line. Instead, get curious and get specific: What don’t you like about it? What can we do to overcome it? The great example of this is Airbnb. Committees frequently say they don’t like it, but a philosophical objection is pretty meaningless. It is far better to focus on a tangible, such as concerns about security, parking or noise. There is usually a more straightforward solution to a tangible than there is to simply not liking it.
It might bark / bite / defecate
Yes, it might. It also might not. Some dog breeds are well known for their uncanny ability to barely utter a peep. Even so, conditions can be used to manage the removal of a dog if it barks too much, or in fact does anything else to cause a nuisance. Shooting first and asking questions later is not an approach that committees can take.
We don’t know who the occupants might be.
Correct. Do you also know every owner? If you’re living in a house, do you know your neighbours? Even if you did know the occupiers – so what? This then implies that you do know who the occupants of all of the other units are and that no one invites anyone in without some sort of approval from the committee. Body corporate decision-making should really be impersonal and made without, for example, your feelings about Joan in Lot 1 or Silvio in Lot 10 coming into play.
The by-laws say so
By-laws are dangerous things. They get registered without anyone checking them and they include what the body corporate has voted in. That doesn’t make them right and we have lost count of the by-laws that are registered that are simply unlawful. You can read more about that here.
Yes, we agree it is dangerous for any committee to register a by-law knowing it is not lawful. But plenty do, thinking they’ll bluff their way through it. Not a bad strategy, until you run up against a particularly insistent (or litigious) owner or occupier who is determined to see their challenge to the by-law through to the end and who understands how to use Google. By that point you’ve spent a stack of time, money and grief.
The Commissioner’s Office said so
Ah, this old chestnut! Here’s a fun fact: when Chris was Commissioner, his office was situated right outside of the area where the Information and Community Education team sat and returned calls. He could hear most conversations but more importantly, the team could too and they share information among themselves. They also go through a rigorous training program that hardens them to giving only the facts.
Also, remember that people are human and have a tendency to hear only what they want to hear. They might have had a 20-minute call with the Commissioner’s office in which the Information Officer was very clear with them about what was not possible, but the owner only heard the 10-second grab which offered them their out clause.
So, when you get this line, think of the above and also remember: But what were they asked? What facts were they given?
The REAL reasons
Then there are, as we continually find out, the real reasons that things sometimes get refused.
Because you have always been difficult / a nuisance
We don’t like you
You didn’t make the application the right way
You haven’t paid your levies
You used to be on the committee and refused my request for something different
These are emotive responses to non-emotive issues and yet they’re totally understandable reactions. How are they overcome?
Well, there are several ways to be reasonable, act reasonably and make a reasonable decision – while also not making an unreasonable one. I think, and really this is something that Hynes impresses upon all its clients and anyone who is part of our webinars, seminars and information events, it comes down to this: can you adequately explain why you did something?
If you are put in a position where you have to justify your position to an adjudicator, can you do that without it sounding like a complete crock? If the answer is ‘no’ – then you can be pretty sure your refusal is based on pretty shoddy grounds, and you should be prepared for it to be challenged.
Both Chris and I have become experts at reality-checking clients in this way. Let’s have the conversation about it and see if we can reality-check to help you if and when it is needed.
This article was contributed by Frank Higginson, Partner- Hynes Legal.