By-Laws: Playing Devil's Advocate - Vic - SSKB - Strata Managers | Community Experts

By-Laws: Playing Devil’s Advocate – Vic

Owners Corporations should play devil’s advocate with their rules to ensure they comply with the law and are enforced in such a way to reduce the risk of them being overturned in adjudication.

The governing principle for all Owners Corporation Rules can be summed up like this:

  • Are they reasonable and fair?
  • Are they legal?
  • Can they be enforced?

The primary purpose of Owners Corporation Rules is to create an agreed-to set of rules that control and manage the common property and OC assets, including services and facilities and the use of lots.

New South Wales and Victoria have model rules provided by their respective state governments. In Queensland, bodies corporate can adopt the standard by-laws that are set out in Schedule 4 of the Body Corporate and Community Management Act 1997 or make their own.

Owners Corporation Rules can cover a lot of ground and be specifically tailored to suit particular community, but they cannot:

  • be inconsistent with the Act or any other legislation
  • stop or restrict a sale, lease, transfer, mortgage or other dealing with a lot
  • discriminate between types of occupiers
  • be unreasonable, when the interests of all owners and occupiers in the scheme and the use of the common property are considered
  • restrict the type of residential use of a residential lot
  • impose a monetary liability on an owner or occupier (except in an exclusive use by-law)
  • stop a person with a disability from having a guide, hearing or assistance dog on the scheme.

All communities must register their rules with the relevant state legislative body, but that doesn’t mean a recorded rule is deemed valid. Rules may be challenged and if an adjudicator deems them to be invalid, the Owners Corporation will be required to change them and register the amended rules with the plan of subdivision.

If your community chooses to create specific rules to suit your specific circumstance, it is important to:

  • be clear about the outcome you want to achieve, not only for the present but also for the future benefit of all residents, and
  • determine how the rule is to be legally enforced and whether it risks being ruled invalid.

This is an essential step because it is the responsibility of the Body Corporate/Owners Corporation to enforce their rules.

In Victoria, there is a three step process for complaints that goes from internal dispute resolution to applications to the Victorian Civil and Administrative Tribunal.

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