Best practice with by-laws

Contributed by HYNES LEGAL – 26 Feb 2018

Best practice with by-laws

Who knows what is driving it, but we are seeing more and more by-law disputes.

It helps that we have been banging on (some would say endlessly) about by-laws for a while. We continually see the carnage that results from by-law enforcement gone wrong. Some of that is the legal dispute the parties end up in but mostly it is about relationships. No one reacts well to being hit with a large stick. If by-law enforcement is handled badly, it becomes very hard to mend the relationships.

Tenants can move out. Owner occupiers tend to dig in and the body corporate equivalent of trench warfare can be the result.

So, what to do?

Talk

Yes, we know this is trite, but it is so easy to bang out a nasty email at 9 pm at night or fire a letter from a lawyer to a recalcitrant occupier. Depending on the tone of that correspondence it can be very hard to then get the relationship back on track.

People are likely to react a whole lot better to a face to face discussion about by-laws. Quite often they don’t even know that by-laws exist, let alone that they are breaching it. We are sure it happens but we have not yet had the matter across our desk where someone deliberately set out to breach the by-laws before they did it.

No, the BCCM Act does not require a face to face discussion. What it does require is an attempt to resolve the dispute informally. We think face to face is the best way to try to do that.

Yes, that may require someone to gird their loins for a potentially unpleasant conversation. The alternative is back to some form of written correspondence that no matter how sincere, is hard to solve (as opposed to demand) things. It gets harder again if the writer or the recipient don’t have the same primary language.

Face to face conversations about by-law breaches are probably not what anyone signed on to do when they bought a lot in a community titles scheme. But it may well solve the issue with a minimum of fuss and get you back to doing whatever it is you want to do in your spare (or work) time.

Know what your by-laws say

This sounds simple, but do your by-laws actually address the sort of conduct that is being complained of? A lot don’t. What you think the by-law says and what it actually means can be two different things.

That leaves aside whether the by-law you are looking to enforce it is lawful in the first place. We have written many times about unlawful by-laws. You can refer to our website to see a list of previous articles.

Go ‘formal’ legal as a last resort

We are talking ourselves out of a job here but the moment lawyers appear on the record everyone gets more uptight. Have you ever got a letter of demand or a threat from a lawyer that made you feel that the matter was going to get easier to resolve due to their involvement?

Pretty unlikely we bet.

We think lawyers (or their body corporate managers) should guide committees through the early stages of any by-law breach and then only get on record as a last resort when there appears no other way to resolve the issue.

Who does the enforcing?

Resident managers or body corporate managers do not enforce by-laws.

Committees do.

We first wrote about this six years ago. Each party has a role to play in working together to ensure the amenity of the scheme but the ultimate responsibility for by-law enforcement rests with the committee.

A by-law enforcement checklist

Thank you to those of you that took the time to appreciate what we have written and made it to the end. Well done! As a reward we have put together a free checklist which is a step by step guide for what to do when it comes to breaches of by-laws. Contact us, we are only an email away.

And of course – you can always upload your CMS, if you want us to review your by-laws for you. That all starts with a no-obligation proposal pointing out some of the issues you have with your by-laws and what you are missing.

HYNES LEGAL