First published in the LookUpStrata Queensland Strata Magazine, August 2024
If good fences make for good neighbours, then good by-laws make for a good scheme.
The success of a strata community often comes down to the quality and transparency of its by-laws.
By-laws and house rules are used fairly interchangeably in strata land, but they are two completely different beasts.
A by-law is registered in a scheme’s Community Management Statement (CMS). It’s all those terms that are in Schedule C that detail speed limits, gym rules, exclusive-use car parking, and whatever other rules the scheme may contain.
On the other hand, house rules are a bit of a legal fiction. They have evolved over the years, and are the rules made by the committee that aren’t actually in the by-laws. In a sense, they’re more like policy considerations or guidelines.
A scheme may be in a position where the by-laws rule that a pet can’t be kept without committee approval, and then behind the scenes the committee might have guidelines around what those conditions may be in relation to certain types of pets and how they are to be managed.
House rules on their own are not legally enforceable; by-laws are enforceable, provided they are lawful. Putting unlawful house rules into a by-law doesn’t make them valid either.
In any dispute, adjudications from the Office of the Commissioner for Body Corporate and Community Management have traditionally relied on a black-letter-law reading of a CMS.
Though house rules may provide guidelines on how a by-law is to be administered, they do not of themselves represent enforceable directions.
Again, we come back to the fundamental issue that just because something is in a by-law doesn’t make it reasonable. By-laws can't be oppressive or unreasonable, and they still must comply with all the provisions of Section 180 of the Act.
But a house rule would not be enforceable under a by-law contravention notice.
If you want to have a provision that’s enforceable as a by-law, it needs to be in a by-law. If you want to have house rules, which are effectively guidelines in relation to the use of, say, common property, have them, but don't expect to be able to enforce them through a by-law enforcement process.
From a committee perspective, you've got to decide what it is that you want to achieve then make sure that you’ve got the documents that are consistent with that choice.
To get clarity on the distinction between by-laws and house rules, or to adopt policies that are enforceable, it’s always best to seek legal advice.
We offer a free By-Laws Assessment - see more here.
