Shades of Grey: A Cautionary Tale of Strata By-Law Enforcement

“The Truth is that many people set rules to keep from making decisions.”
Mike Krzyzewski

It comes as no surprise that strata company by-laws are a constant cause of dispute. If your aim is to minimise disputes, it is not as simple as enforcing by-laws and making people comply.

In fact, we’re all far better served by resolving disputes in ways other than enforcement. Try not to see by-laws as black and white, but as shades of grey. Many By-laws should be flexible whilst allowing the strata company to govern and manage.

Real-life story as an example:

Assume that this is a standard schedule 2 by-law in place for a strata scheme:

“Drying of laundry items: An owner or occupier of a lot must not, except with the consent in writing of the owners corporation, hang any washing, towel, bedding, clothing or other article on any part of the parcel in such a way as to be visible from outside the building other than on any lines provided by the owners corporation for the purpose and there only for a reasonable period.”

The strata manager has written to the owner of Unit 9B twice demanding that she not dry laundry on the balcony, but within four months of the last letter, she had again dried clothes on the balcony of the unit. There is no consent from the strata company to hang washing on the balcony. This is a clear and straightforward breach of the by-law.

This was the response from the owner to the Strata Schemes Board of NSW when the strata company took action against her for penalties for breaching the by-law:

“We moved into Unit 9 during the first weekend of April … A couple of weeks later we experienced a drain blockage in the shower and the carpet outside our bathroom was flooded. It was raining at this time, so when I mopped up the water, I hung the towels over the railing to dry. ….and haven’t hung anything over the railings since …

We continued to spasmodically hang out our laundry on the balcony from our small portable clothes dryer, unaware that this was against the by-laws. As I was in the latter stages of pregnancy, and working full time, I had neither the time, nor the inclination to use the lines provided down stairs. In all honesty, I wasn’t aware that I was in strict violation of the by-laws in doing this …

It’s my understanding that the reason this by-law is in place is to keep the outside appearance of the building tidy and uniform. That’s fine, but as our balcony is located on the top floor of the south western corner of the building, we honestly didn’t see how anybody could possibly be offended by something they would find virtually impossible to see, unless they were sitting on top of the roof of the house next door. Our balcony – being solid brick at either end, is not visible either from the street, or from common property at the rear. We explained that we couldn’t possibly see how anyone would be bothered by it …

It strikes me as odd that other residents are entitled to have irregular items and eyesores on their more visible balconies – ruining the neat, uniform appearance of the building – and we are being held accountable over one rack of washing that virtually no one can see.

As a mother of three, with a newborn child, I have neither the time, nor the energy to pace three flights of stairs to hang out the two loads of washing I go through per day, risking certain items being stolen. While the people whom have lodged this complaint have been rigidly observant enough to detect our minor transgression, they haven’t been observant enough, or sensitive enough, to notice the difficulties I may be experiencing and allow us a small amount of tolerance. What possible harm would it do?

This legal action and the threat of a huge fine is not only extreme, it also strikes me as cruel and insensitive to say the least. As it is, this farce has caused us to commence seeking alternative accommodation.

I understand the by-laws are put in place to ensure the equal protection of all residents, but I feel that the handling of this particular case is a classic illustration of the kind of heavy-handed bureaucracy that is detracting from the true sense of community and co-operation that all decent human beings should be striving for, not to mention being a monumental waste of the time and energy of everyone involved. I hope you will take our assurances of compliance in the future as punishment enough, because I am still forced to hang clothes from my portable drying rack, only it will be inside the door and not outside.”

Penalties Dismissed – Technicality

In this case, the application for penalties was dismissed, but not because there was no breach of the by-law; it was clear the by-law had been breached. It was dismissed on a technicality in relation to the notice that was issued prior to the commencement of the proceedings.

The wording of the above by-law, like many by-laws, is premised “without the strata company’s consent” or “without the council’s consent”. Consent, of course, can be conditional. How might this case have played out differently if the notice to the proprietor was not a notice that said “you’re in breach and must stop”, but instead said “you’re in breach because you don’t have the consent”? Serious consideration should always be given to permitting, rather than punishing.

I’ve heard many times the argument “we can’t give consent because it will set a precedent”. Well, good! Let proprietors know that the council is making good (if hard) decisions. Let people know that if they have a good case for consent, they’ll get it. Encourage people to apply for consent and allow council to have heads up on what’s going on and deal with possible problems before they happen.

If people’s experience is that council sees things black and white and won’t consent then they think that there is no point bothering to ask, but just do it and seek SAT forgiveness later. To avoid the perpetuation of this attitude, see by-laws in shades of grey, not black and white.

Strata Lawyers

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Photo Credits: http://www.flickr.com/photos/meetthewretched/6962109171/

Gibson & Gibson have been specialising in strata title law for 25+ years and can help you face the challenges. Contact them today for more details.

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