Owners corporations should take care when they amend existing by-laws. The simple decision to delete a word, or add in a word, if not done with consideration to the entire by-law and/or by-laws for scheme, can render a by-law invalid or unenforceable.
Here are some quick do’s and don’ts when amending a by-law.
Do read the entire by-law. Check for defined terms and make sure the change you wish to make is consistent with those terms.
Do check to see if the by-law you are changing is part of a set of by-laws which has defined terms in a separate clause or by-law. If there is a definition clause, make sure your changes are consistent.
Do, if the by-law is a common property rights by-law granting rights to a particular lot owner, obtain that lot owner’s written consent to make the change.
Do draft the motion to make the change in clear terms. State in writing which word/words, clauses, paragraphs etc. are to be deleted and which word/words, clauses, paragraphs etc. are to be inserted.
Do resolve to make the changes via a special resolution at a general meeting of the owners corporation.
Do consider getting a strata specialist lawyer to review any changes or proposed changes for you. This is because they will be aware of the latest legislative changes and changes in case law that may affect the validity of by-laws and how they are interpreted by the Tribunal.
Don’t assume that inserting an additional word or sentence is the only change you will need to make. The one change might have ramifications for other terms which need to be updated.
Don’t assume that changing one word or clause, paragraph etc. in one clause will change the meaning in all other clauses automatically. You should update all other clauses consistently.
Don’t forget to make sure that if the change you are making involves an annexure, plan or drawing, that the annexure, plan or drawing is also updated. Any plans should be in black and white, not in colour.
And finally, if you are making changes ensure that they are all clearly set out and passed at a general meeting by a special resolution.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.