Disputes will arise when a person with a material interest in a community scheme considers that one or more of its governance provisions are invalid and therefore not enforceable.
In terms of section 39 (3) (c) of the CSOS Act, an application may be for:
“an order declaring that a scheme governance provision is invalid and requiring the association to approve and record a new scheme governance provision to remove the invalid provision”
Examples of issues
There can be any number of reasons someone may doubt the validity of a governance provision. Below are a few examples.
- A sectional owner is of the view the resolution making a management rule restricting short-term letting of units was not passed by the required unanimous resolution, because she did not agree to it.
- An owner believes that a governance provision that effectively bars him from exercising a religious ritual unfairly restricts his constitutional rights.
- If she or he is not able to persuade the scheme executives and other owners that provision they consider invalid must be removed, they must make an application to the CSOS to have the governance provision declared invalid.
Example of order
An example of the type of order the CSOS could give is:
1. The Halfway House Body Corporate’s management rule 35 is invalid in that it unlawfully infringes on tenant’s constitutional rights, and
2. The body corporate must approve a alternative reasonable scheme governance provision and/or remove the invalid provision within a period of 3 months from the date of this order which takes effect immediately.
Is this not the right order – is either the type or category is wrong for your matter?
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