Importance of creating reasonable by-laws

| February 9, 2012

Strata and community title legislation gives owners an extraordinary power not given to any other owners of property: the power to write by-laws for their neighbours, regulating not only what they do on commonly-owned property, but what they do in their own home.  Cathy Sherry, University of New South Wales Senior Lecturer at the Faculty of Law, explains the importance of capping the number of by-laws.

The basic rule that applies to all other property owners is that if you do not like what your neighbours are doing – BBQing in their yard, painting their house pink, paryting until dawn – unless what they are doing is affecting you in some significant way, you just have to suck it up.  You have to be tolerant.  Partying until dawn can be stopped because it has a markedly negative effect, but painting a house pink, no matter how ugly you find it, does not harm you in any legally relevant way.  Unless what we are doing harms others, in our own homes and in our own lives we are free to live as we please.  This is a fundamental and hard-won principle of liberal democracy from which we all benefit every day.

As strata and community title schemes are higher density than freestanding housing, the likelihood of affecting your neighbours negatively is greatly increased.  For example, BBQing on your balcony might fill neighbours’ apartments with smoke.  As a result of density, regulation might be more readily needed in strata and community title, however this does not mean that any and all regulation is justified.  Regulating what people do in their own home can only ever be justified on the grounds that they are harming others.

New South Wales strata and community title legislation contains no such limit.  By-laws simply have to relate to the use and enjoyment of lots or common property.  A by-law banning people eating meat in their apartment is prima facie valid.

As a general rule, people in NSW must be very reasonable because extreme by-laws are rare.  However they do exist.  For example, blanket pet bans which prevent people keeping an entirely silent cat who never leaves the apartment, or even a gold fish, are an unacceptable intrusion in people’s private lives.  Just as it is none of my business that my neighbours have a cat on their sofa in their freestanding house, it would be none of my business if the cat, the sofa and I all happened to be in an apartment block.  The ridiculous nature of the law is demonstrated by the fact that a strata scheme can ban resident cats, but do nothing about every other cat in the neighbourhood sunning themselves in the common property garden.  In relation to neighbourhood cats, strata owners are required to act as normal members of a democracy and be tolerant of those things that do not really harm them.

The United States has grappled with the question of the limits on by-laws for decades and courts have come up with the requirement that by-laws and covenants must be “reasonable”.  Of course there is no definition of what is “reasonable”, it must be argued in every case, but so it is with all law.  There are no scientific formulae for producing law; it is always just a question of weighing up the pros and cons and deciding on balance what seems sensible.  

In theory, by-laws as delegated legislation already have to be reasonable, in accordance with general principles of administrative law, but this has rarely been considered by courts.  An express statutory requirement of reasonableness, as in the US or even Qld, would be preferable, in addition to a presumption that by-laws that regulate activities that do not significantly affect others are invalid.

The power of the majority to write laws for their neighbours is potentially dangerous and oppressive.  If misused, it can foster disharmony and resentment in communities, which in turn makes everyone’s life a misery.

Cathy Sherry
, Senior Lecturer, Faculty of Law, at the University of New South Wales, teaches postgraduate and undergraduate courses on strata and community title.



Strata consulation questions:

Q1. What are the main areas of the existing strata and community scheme laws you would like to see changed?

Q2. Can you see any future issues that need to be addressed in the legislation?

Q3. How could the management of strata and community schemes be improved?

Q4. Are there any changes needed to the way disputes in strata and community schemes are resolved?