Can Community Association prevent owners in arreas using common property

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Forums Common property Can Community Association prevent owners in arreas using common property

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  • #230254
    White Rabbit
    Member

    Hi Amanda,

    My community association executive is suggesting we have a by law preventing lot owners (or their tenants in rented properties) from using the community leisure facilities if the lot owner is in arrears with levies.

    I am fairly certain that this is not legal, could not be enforced and that you may have discussed this issue in a podcast.

    Am I correct in believing that such a by law would not be legal or if it were that it would not be enforceable.

    If you did discuss in a podcast or a video can you send me the link?

    Thank you

     

    #230505
    Amanda Farmer
    Expert

    Hi White Rabbit,

    You say “community association”. Is this a by-law proposed to be added to your community management statement?

    I don’t recall discussing this on a podcast episode or a video recently. However, I was involved in this case, which may have some relevance: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATCD/2018/29.html

    It is arguable that a by-law of this nature is outside the power of the CA to make because it would be inconsistent with the legislation, which provides no such restriction on a resident’s ability to use the community facilities.

    I say “arguable” because in my view the community association legislation is not really all that clear on the scope of the by-law making power and CAs do (in my view) have greater scope for by-law making than owners corporations.

    This one is a little grey. Though if you wanted to, you’d probably find a few statements to support your position in the above decision.

    Bear in mind that proposed amendments to the community associations legislation incorporate the concept of “harsh, unconscionable or oppressive” by-laws. These amendments have not yet commenced in NSW. My gut feel is that this by-law would fall into such a category. I have also just reminded myself: we talked about this proposed new legislation in this member call: https://yourstrataproperty.com.au/member-call-no-20-demystifying-bmcs-with-strata-manager-andrew/

    Perhaps that’s what you were thinking of.

    Amanda.

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