NSW STRATA: Dealing with By-Law Breaches in Your Strata Scheme

Owners and occupants within a Strata Scheme are typically aware that by-laws apply to the scheme. By-laws are the set of rules dealing with various matters, including behaviour of owners/occupiers and management of common property. The aim of them is to promote harmonious living through a fair and equitable approach to behaviour around the complex and ensuring every person’s right to peaceful enjoyment.

A copy of the By-laws for the Strata Schemes managed by Strata North can be accessed via the Online Owner Portal or an owner can request a copy of their Strata Manager.

The common questions we get as Strata Managers are:-

  • What is the actual process to deal with a person who is breaching the by-laws? 
  • What are the possible consequences for a breach of the by-laws? 

1. Make Contact with Person.
Often the person may be in breach of a by-law without even knowing it and for that reason we recommend a member of the Owners Corporation approach them in a friendly manner to advise of the issue.
Simple by-laws a person may not be aware of include parking, appearance of the Lot and supervision of pets. Often the person will be appreciative of someone giving them a friendly reminder of the by-laws which promotes the sense of community in Strata Schemes.

2. Advise Person of Breach in Writing.
If someone continues to breach a by-law, the next step is to advise the person in writing that the particular behaviour or action must cease or that they must do something.  Not only does it make it clear to the person of the specific by-law that they are in breach of, but also provides a written record of the Owners Corporations efforts to address the matter with the person.
This initial letter, although not a requirement of the Strata Schemes Management Act 2015 (“the Act”), is an important step if the matter ends up in the NSW Civil and Administrative Tribunal (“NCAT”) as the Owners Corporation will be required to show proof of the efforts it has taken to resolve the matter.
In order for such a letter to be sent, the Strata Manager will need to be provided with details of the breach including details of the lot/s in breach, the specific behaviour, action or non-action, details of when and where the breached occurred and any evidentiary documentations.

3. Issue a ‘Notice to Comply’. Under the Act if a person continues to breach a by-law a formal ‘Notice to Comply’ may be served on them. This is a formal document notifying the owner or occupier of the breach and setting out what is required by them to ensure compliance with the by-law.

An example of a ‘Notice to Comply’ can be seen at the below link:
https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0011/367841/Notice_to_comply.pdf

Before the Owners Corporation can serve such a notice, a resolution must be passed at a meeting approving the issue of the notice and the details contained in it.

4. Mediation Normally before any application can be made to NCAT for an order, it requires the parties to attempt mediation to resolve the matter.
If mediation is unsuccessful then the Owners Corporation can apply to NCAT for an order.
Before the Owners Corporation can apply for mediation, a resolution must be passed at a meeting that it is satisfied that there has been a breach and approving application.

5. Refer Matter to NCAT If the Owners Corporation is successful in their application to NCAT, the following may apply:-

(a)  A fine of up to $1,100 with the possibly of a further fine of $2,200 if NCAT is satisfied that the breach has occurred again within 12 months of the initial penalty; and/or 
(b) An order requiring the person to comply with the by-law.

Before the Owners Corporation can commence proceedings in NCAT, a resolution must be passed at a meeting that it is satisfied that there has been a breach of the Notice to Comply and it will commence proceedings.
 
Changing the By-Laws for a Strata Scheme.
In some cases, the current by-laws for a Strata Scheme may not suitably address an ongoing issue in the Strata Scheme or older by-laws may be considered harsh, unconscionable or oppressive and no longer in the best interest of the individual Owners or Owners Corporation. In this instance the Owners Corporation can resolve to amend, add or delete a by-law.
Commonly a solicitor will be required to draft the appropriate changes or additions to the by-laws to ensure compliance with the Act.

Section 141 of the Act states that any change of the by-laws requires the passing of a special resolution and registration of the change on the common property title within 6 months of the resolution.
 
If you would like any further advise on this or any other matter involving your Strata Scheme please do not hesitate to get in touch with your Strata Manager to discuss.
 
Regards,


Alex Pratt – Strata North 
Licensed Strata Manager

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