The Top 5 Mistakes Committees Make When Enforcing By-Laws
August 4, 2022
By-laws. We talk about them a lot – how they get reviewed, registered, enforced, or challenged. They are complicated and complex. Which means mistakes get made. Read on for our top 5 mistakes committees make when enforcing by-laws. Have you even looked at this flowchart for by-law enforcement? It’s great because it gives the idiot’s guide to enforcement.
That means it is incredibly detailed and yet, it is precisely because of that detail that it presents so many opportunities for mistakes to be (inadvertently) made. In our experience, here are the Top 5 of those mistakes:
- Enforcing Them AT ALL: “But hang on!” you cry, “I thought you said that a body corporate must enforce by-laws.” True as that is, a committee does have options other than by-law enforcement. They can engage and talk, not only with the individual but with the scheme generally, making sure everyone is on the same page with the by-laws. Options such as alternative dispute resolution, including mediation, can be considered also, particularly where the by-law breaches are systemic and part of a larger set of challenges involving the person or persons. Friendly (or even, not so friendly) letters or reminders can also be sent. The point being that committees can think the solution is only ever by-law enforcement, when other possibilities might get better results.
- Evidence – or, Lack Thereof: by-enforcement is, at its core, about making an allegation and as is the case with making any allegation, you better make sure you have the evidence to back it up. No point suggesting Mavis in Lot 1 is breaching the parking by-law without things such as photographs, CCTV footage, a log of alleged breaches or statements from other occupiers to support it. Moreover, don’t make the mistake of your ‘evidence’ being hearsay or unsubstantiated claims from people who are motivated only by the axe they have to grind.
- Inconsistency: enforcing the same by-law against one person yet not enforcing it against another, even though the breach is more or the less the same, is a big mistake. Inconsistent application of by-laws very quickly leads to disharmony, distrust, suspicion, and a general impression that the committee at best doesn’t know what it is doing or at worst, is playing favourites
- Not Identifying the Offender: who exactly is breaching the by-law? On the face of it, it seems like ‘someone’ from lot 7, although who? A tenant? Visitor? The owner? The owner’s invitees? And who are they? Are their details on the roll? Obtainable from the real estate agent? While in some cases it may be sufficient to refer to ‘The Occupier’, most instances require a committee to know who it is they want to enforce against. Assuming the identity of the offender is a recipe for disaster when enforcing by-laws.
- Failing to Follow Through: we talked in mistake 1 above about how there are alternatives to by-law enforcement, one of which was to send a letter of warning. A common mistake committees make is to send that letter…and then another…and then another…then wait…then maybe write again. You see the pattern here: the failure to follow through to formal enforcement, when needed, means that the offender does not face any consequences and in fact can come to view by-laws as entirely optional. In other words, a committee should always put their money where their mouth is.
The thing is, of course, that we always can – should – learn from our mistakes. And that is also true of by-law enforcement mistakes. Even if you commit one or more of these top 5 mistakes (or any other ones for that matter), you can still recover. When the next by-law flashpoint rolls around, you will be in a much better position to make it work best for you, the owners, and the entire scheme. Needless to say, Strata Solve can assistance – contact us to find out more.
This article was contributed by Chris Irons, Strata Solve.
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