When making decisions you need to carefully distinguish what is within your power and what decisions are out of your power to make (see also sections 1.3). The technical legal term for acting beyond powers is ‘ultra vires’. Ultra vires means that any actions an owners corporation takes that are beyond power are legally unenforceable. Given an owners corporation cannot act with any legal authority to impose or enforce beyond their powers, you need to be very careful that you act within your powers or you may be negligent.
|You may be surprised at how easy it is to cross the line. For example, in one multi-cultural occupied building notices about rubbish issues were put up in the lifts written only in one foreign language. The few residents who spoke this language were understandably upset that they seem to have been singled out as the cause of the rubbish issues. A look at the anti-discrimination legislation and a call to the relevant state anti-discrimination department revealed that this bordered on racial discrimination. The notices were taken down immediately this was pointed out. A strata building should not be a place where the executive committee uses their power to single out, restrict or make people’s lives difficult. Ways should be found to resolve issues that do not diminish the lives of owners and residents.|
|For example if you don’t have a by-law which states that non-resident guests cannot use the gym or if they do use the gym then they must be attended by a resident, or that they must sign-in to a log, and you only have rules or policies, you have no legal right to enforce these rules or policies. Of course, many buildings do have policies, such as keeping the billiard balls or table tennis bats behind the concierge counter, requiring bookings and sign-outs for loaning and returning equipment. However, you are relying on the good will of the residents to comply. This is appropriate in many ways as you do not want to make your building an unpleasant and untrustworthy place. But if some residents take advantage of the rules you need to be prepared to make them into by-laws and then start enforcing them.|
An important consideration is the difference between building rules or policies and by-laws. Basically if it’s not in a by-law or some other legally enforceable legislation then it’s just not enforceable.