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Oppressive or unreasonable

By Frank Higginson31 Oct 2013

If you are in the strata management industry, expect to see a lot more of this phrase in coming years.

Section 180 of the Body Corporate and Community Management Act 1997 sets out limitations for by-laws. Amongst other things ‘A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme‘.

This is where the changes to the landscape for pets in bodies corporate came from.  If a pet does not impact on other owners, then why shouldn’t an owner be able to keep one? Click here and here for prior articles on pets.

Consider any number of typical by-laws that exist in a CMS.  One might relate to the use of the pool.  Quite often a by-law will set out pool hours. That by-law might say that the pool cannot be used between 10pm and 7am.

Is that reasonable?

Objectively we think there is a very strong argument that it is not.

Take this example.  An owner works as a policewoman. She finishes her shift at midnight.  If she isn’t going to do bomb dives in the pool and yahoo around with unrestrained abandon when she has that swim, then why shouldn’t she be allowed to have a dip at 1am? 

If the use of the pool doesn’t interfere unreasonably with other owners, the by-law could very well be oppressive or unreasonable.

That is just one example. Take another typical town house by-law. ‘Vehicles over two tonnes must not be driven across the common property.’  Why?  Is there any engineering evidence that sets out that the common property roads cannot take a vehicle of that weight?  Or did someone (probably a junior lawyer or vigilant committee) in distant years past lick a finger put it in the air and decide that two tonnes was the limit?  Is it oppressive? (probably not) or unreasonable? (quite likely if the weight limit was just plucked from thin air).

Society is changing.  Technology is allowing people to work different hours and roles. Shift workers abound.  Generation Y is far less compliant than the baby boomers and generation X.  In a body corporate context ‘Y’ might as well be ‘why.’

If you think by-laws are enforceable just because they are in a CMS, think again.