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August 09 Edition Cover

Owners’ Corporation Law - April 2016

31 Mar 2016

How to restrict the potential for intimidation at meetings and on the common property.

My colleagues in the United States that practice law in the field of Homeowners Associations (HOAs) are currently grappling with a big legal issue. And I’m very glad that here in Australia, we won’t have to deal with it.

A number of HOAs and condominium complexes are attempting to pass rules that would prohibit guns from being brought to meetings on common property.

Ordinarily, it would be a constitutional and inalienable right in the USA for persons to carry guns with them on common property, however recently the courts have held that HOAs can pass rules designed to “promote the health, happiness and peace of mind of the unit owners”.

The pro-gun community argue that carrying guns to meetings will ensure the happiness and peace of mind of owners, as they should feel secure and safe, while the anti-gun lobby argue that carrying guns to a meeting would provide no peace of mind to unit owners at all, and could lead to intimidation and the threat of violence in a setting where issues such as raising special levies, repairing building defects, terminating service providers and enforcing community rules need to be discussed and resolved.

A determination on this legal issue is pending in the US courts. For safety’s sake, I hope that a precedent can be established to restrict and prohibit guns at meetings. However, from a legal perspective, I foresee that the court would be duty bound to uphold the constitution and to declare that owners may carry their guns to protect their homes.

I’m certainly thankful that we live in a society where citizens carrying guns for protection is outlawed. As a lawyer, I’ve been to my fair share of hostile meetings, but fortunately I’ve never had to consider wearing a bulletproof vest to a meeting. Besides, it would look too bulky underneath my suit.

Jokes aside, there is a worrying pattern developing in Australia. I’ve now attended several meetings where security contractors have been present. I’ve broken up a fist fight that started between two owners over whether to repair building defects or sue the developer.
In Sydney in 2014, a strata manager was shot in the neck at a special general meeting. The shooter, a male elderly pensioner that was later found by the courts to be “mentally incompetent” had set out to kill the strata manager and to take his position. Apart from the gun, he was also carrying a long kitchen knife and several clips of ammunition.

A survey of strata managers found that more than 70 per cent reported feeling unsafe and intimidated at meetings within the last 12 months.

Certainly, it is not that I believe that one isolated incident of gun violence in Sydney could spark a trend of similar incidents. Indeed this could be the only incident involving a gun at an OC meeting in Australia’s history, and clearly not a cause for concern.

However, my concern is that the potential for faulty decisions to be made due to threats of violence or intimidation (with no guns present) at a strata meeting could have serious legal implications.

I have seen it happen time and again, and I should think that bringing in the secret ballot process as part of Consumer Affairs Victoria’s legislative reforms in this area would go a long way to addressing issues of intimidation on the common property.

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