The Strata Property Act is cumbersome mostly because it is written for legal relevance. Understandably, lawyers and Supreme Court judges understand terminology because that is how they make their living. Strata corporations with lawyers who are owners most likely save time on the nuance of defining terms while the rest of us labour through them and not always with a successful outcome.
Weaved throughout the Strata Property Act are the words, “must”,”shall”, “may” and “will”. On the surface of things these words are fairly simple – we all learned them in grade school. Toss in some rules and regulations though and these simple words create some serious firestorms where context is concerned.Fortunately, “shall” is being phased out because who really speaks like that anyway these days?
Back in the day, “shall” had some muscle.It had that aura of authority but nowadays it just sounds pompous or better served raining hellfire from a church pulpit or maybe a political stage. It is a word best used for the dramatic.
A more serious word – more powerful than dramatic – is “must”. Must leaves no room for interpretation because the weight of it is balanced between either/or. If the legislation indicates something “must” occur then there is a requirement for action. To ignore a “must” will entail some sort of consequence.
Think of the bylaw common to most strata corporations requiring strata owners to pay their fees. It usually reads something like this: “A strata owner MUST pay strata fees on or before the first of every month”. What happens to that line when it reads, “A strata owner SHALL pay strata fees on or before the first.” The latter suggests something a little less mandatory. Throw “may” or “will” into the language and there is definitely room for discussion as to when an owner actually pays strata fees beyond personal discretion.
Discretion is the key thing to consider in terms of language directing the obligations of strata owners. Anything without definitive language in the legislation can be open to interpretation. As it is, any council with a degree of intelligence working towards the most successful outcomes for asset management and governance should read the Strata Property Act side by side with The Interpretation Act especially for actions defined with “shall”, “may” or “will”. These three words are the litigious ones.
Of the three “shall” is most like “must” but, “may” or “will” are the kinds of words that trip most strata owners up because strata owners as a group are allergic to “must” because they don’t like rules interfering with community. Strata owners transform “may” and “will” into terms of “maybe”, “maybe not”,”should” and “shouldn’t” or “possibly”. In this way, no one strata council member or owner is a “decider” because in strata corporations, “deciders” are demagogues.
“Must” authoritatively stands alone and assists “deciders” working towards the best interests of all owners. It leaves no room for misunderstanding or interpretation.If you don’t believe me, try arguing against “must” in a Supreme Court chamber and see how long you last.Playing at “must” with softer, gentler alternatives open to misinterpretation create divisive cliques within a community and foster ill will and perpetuate all the negative aspects of strata life. Strata owners interested in doing right within their own communities MUST step off the dummy train and take some time to define terms written to assist them not confuse them.