This reference article provides definitions of terms May, Shall and Must to help you understand the new WA Strata Legislation by Shane White, Strata Title Consult.
As with all statutes, there are words which are specifically used which have a particular meaning and the Strata Titles Act 1985 (the STA) has plenty of them.
In most cases, you will find that these particular words are specifically written in bold italic print. These mostly appear in section 3. of the current Strata Titles Act although other words may appear in different sections allocating a specific meaning to that word when it is referred to in the Strata Titles Act.
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There are some words that are used are but are not defined in the Strata Titles Act. Their importance and specific meaning can be overlooked.
Let’s look at the use of the words “May” and “Shall” for example, which appear in the Strata Titles Act but are not specifically defined in section 3 and are often overlooked.
For their special meaning or “interpretation” we need to go to the “Interpretation Act 1984”.
“56. “May” imports a discretion, “shall” is imperative
- Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.
- Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.”
We can see from this excerpt that the two words have a specific meaning and interpretation.
Whenever these words are used in the Strata Titles Act that are not bolded or in italic but create an obligation, usually on the strata company to do one of two things.
“May” requires a choice to be made, whether the strata company or other persons performing particular tasks (ie: members of the strata council) either do or do not make certain decisions, it is their prerogative decision.
“Shall” is used when the strata company or other persons performing particular tasks must do something as required being an imperative decision.
When reading the Strata Titles Amendment Act you will discover many changes and various areas have been moved within the Strata Titles Act itself and still remain.
There are many new areas and many new words or phrases which in turn, have required specific meanings to be allocated to those words or phrases.
When looking at Insurance section we discover the use of another four lettered word, “must”. Whilst the word itself hasn’t been specifically defined, its intent is obvious.
The use of the word “must”, has been used to replace the previous use of the word “shall” in the requirement to have insurance. See section 97 of the ST Amendment Act.
“97. Required insurance
- A strata company must ensure that the following insurance is in place for the strata titles scheme”.
The use of the word “must” removes any doubt as to the requirement for the strata company to perform any act or thing. It is not optional.
Have a question about the new WA strata legislation or something to add to the article? Leave a comment below.
Read next:
- WA: Maintenance Planning and Insurance: The Strata Titles Amendment Act 2018 (STAA 2018)
- WA Strata Titles Amendment Act 2018: duties of a council member and how to protect yourself from liability
This post appears in Strata News #239.
Shane White
Strata Title Consult
E: [email protected]
Disclaimer: this article should not be relied on as legal advice.
Please note: this article was provided prior to the proclamation of the new strata title amendments.
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Thank you Shane, I can only hope every Strata Manager and every Council of Owners read this and take onboard what MUST be done.