Living in a strata scheme within New South Wales (NSW) can present unique challenges, particularly when it comes to grasping and following the specific regulations known as strata by-laws. These by-laws are essentially a set of rules and guidelines that all strata property owners, tenants, and other involved parties must follow to ensure the efficient operation of strata schemes. Despite their importance, instances of by-law violations do occur, potentially leading to tense conflicts and serious repercussions.
This comprehensive guide aims to shed light on the intricacies of strata by-laws in NSW, emphasising their significance and exploring the potential outcomes of non-compliance. By providing this detailed information, we hope to arm residents with crucial knowledge, foster a sense of community harmony, and help individuals avoid unnecessary legal complications.
Our goal is to offer a thorough understanding of these regulations, their practical applications, and the steps to take when facing potential violations. This knowledge is essential for anyone living in or considering a move to a strata property in NSW.
Understanding Strata By-laws
By-laws serve as the foundational rules that govern the administration and management of various organisations, communities, or institutions. They establish the procedures, standards, and principles that members or participants must follow to ensure smooth operations.
In the context of multi-unit housing complexes, strata by-laws specifically regulate the administration, operation, and utilisation of common property. These regulations are typically established by the owners corporation or strata manager and are applicable to all residents and property owners within the community. Strata by-laws address a wide array of issues to promote harmonious living in such properties, including:
- Noise control measures, including designated quiet hours and restrictions on activities that may disturb neighbours.
- Guidelines for pet ownership, encompassing permitted animal types and sizes, leash requirements, designated pet areas, and proper waste management protocols.
- Regulations regarding unit rentals, which may include restrictions on the number of rental units, minimum lease durations, and tenant vetting procedures.
- Rules for the use of communal amenities such as fitness centres, swimming pools, parking areas, and recreational spaces.
- Policies concerning the operation of home-based businesses, including limitations on their nature and scale.
- Regulations for the use of shared property, such as parking space allocation, guest parking provisions, and visitor parking rules.
These by-laws are designed to create a structured and pleasant living environment for all residents within the strata community.
Legal Framework Governing Strata By-laws
Lot owners have the authority to create and implement by-laws that align with the intended lifestyle of their strata plan. These by-laws, in conjunction with the NSW Strata Schemes Management Act 2015 and the Strata Schemes Management Regulation 2016, form the regulatory framework for strata schemes.
The Strata Schemes Management Act 2015 (SSMA)
The SSMA is primarily concerned with:
- Providing guidelines for strata scheme management
- Addressing disputes within strata schemes
- Enforcing by-laws
It also presents 18 model by-laws that owners can adapt while ensuring essential elements are included. Furthermore, the SSMA outlines detailed financial reporting requirements and specifies the duties of the strata committee.
Strata Schemes Development Act 2015 (SSDA)
The ASDA’s main focus areas include:
- Regulating the handling of common property and individual lots in strata schemes
- Overseeing the subdivision of land to establish leasehold and freehold strata schemes
- Managing the modification, renewal, and termination of strata schemes
Unlike the SSMA, which deals with the management aspects involving the owners corporation, strata manager, residents, and lot owners, the SSDA concentrates on the construction and planning aspects of strata properties.
Together, these legislative acts provide a comprehensive framework for the establishment, development, and management of strata schemes in NSW.
Limitations on Strata Scheme By-laws
Strata scheme by-laws are subject to restrictions outlined in Section 139(1) of the SSMA. This provision stipulates that by-laws must not be unjust, excessively harsh, ethically questionable, or oppressive. The New South Wales Civil and Administrative Tribunal (NCAT) is responsible for evaluating whether a by-law violates these constraints and has the authority to invalidate any by-law that fails to meet these standards.
To illustrate the application of these restrictions, we can examine two recent legal cases:
Cooper v The Owners – Strata Plan No 580068 [2020] NSWCA 250
This notable case, often referred to as the “Cooper Case,” involved a by-law violation in “The Horizon” scheme in Darlinghurst, Sydney. The by-law in question prohibited animals on the premises. Despite this restriction, some residents kept pets, leading to legal action. In October 2020, the New South Wales Court of Appeal declared the by-law invalid. The court emphasised that for a by-law to be enforceable, it must be reasonable, not oppressive, and aimed at preventing disturbances to others’ enjoyment. This ruling set a significant precedent for similar cases across NSW.
Franklin v The Owners – Strata Plan No. 87497 [2022] NSWCATCD 210
Another instance where a by-law was deemed unfair, excessively severe, or oppressive occurred in the Franklin case. Here, the applicant challenged the validity of a by-law that prohibited all cooking within individual units, except for the use of a kettle. The disputed by-law also made residents financially responsible for fire brigade callouts triggered by alarms. In this case, the NSW Civil and Administrative Tribunal ruled that the blanket ban on cooking was unreasonably unfair and oppressive, and consequently invalidated the by-law.
These cases demonstrate the importance of ensuring that strata by-laws are reasonable, fair, and not overly restrictive in their application to residents’ daily lives.
Consequences of By-law Violations
Issuance of a ‘Notice to Comply’
When a strata by-law is violated, the SMMA empowers the strata committee to convene and vote on issuing a ‘Notice to Comply’. This notice can be delivered via post or email to the party suspected of breaching the by-law. If the alleged violator is an owner-occupier, the notice may be sent directly to them. In cases where a tenant is suspected of the breach, the notice can be issued to both the landlord and the property manager.
Financial Penalties for By-law Infractions
In strata disputes, the owners corporation has the option to petition the NSW Civil and Administrative Tribunal for the imposition of a civil monetary penalty. These fines can range from 10 to 100 penalty units, depending on the nature and frequency of the by-law violation. It’s crucial to note that any application to the NSW Civil and Administrative Tribunal must be filed within 12 months of issuing the notice.
The potential financial penalties are structured as follows:
- An initial fine of up to $1,100 (equivalent to 10 penalty units) may be imposed.
- If the NSW Civil and Administrative Tribunal determines that the individual has committed another breach of the same by-law within 12 months of the initial penalty, an additional fine of up to $2,200 may be levied.
These financial consequences serve as a deterrent against repeated violations and encourage compliance with strata by-laws. The severity of the penalties underscores the importance of adhering to the established rules within a strata scheme.
Addressing By-law Violations: A Step-by-Step Approach
Open Dialogue
When faced with a by-law breach in your strata property, begin by initiating a friendly and transparent conversation. This approach often proves effective in resolving issues. Whether it’s parking infractions, noise disturbances, pet-related problems, or disruptive guests, explain how the behaviour affects you and other residents.
Seek Support from Strata Management
If direct communication proves ineffective, reach out to the strata committee or strata manager for assistance. An unbiased committee member can mediate, offering solutions and conflict-resolution strategies. They can also educate the violator about communal living principles and the consequences of disregarding by-laws.
Document the Violations
Keep a detailed record of infractions, including involved parties, nature of the breach, occurrence details, timing, and duration. Gather supporting evidence through documents, photos, or videos to strengthen your case for potential future actions.
Formal Notice to Comply
If violations persist, the owners corporation can issue a formal notice to comply within a reasonable timeframe, accompanied by the relevant by-laws. Separate notices should be issued for multiple by-law breaches.
Dispute Resolution Process
Should the formal notice prove ineffective, the owners corporation may seek mediation through appropriate channels. This involves bringing both parties together with an impartial mediator to identify the issue and explore potential resolutions. The strata committee must convene to pass a resolution confirming the breach before applying for mediation.
NCAT Application
If mediation fails to resolve the issue, the owners corporation can file an application with the NSW Civil and Administrative Tribunal.
By-law Review and Update
If NCAT finds the allegedly breached by-law to be harsh, oppressive, unconscionable, outdated, or not in the best interest of owners and residents, the strata committee must update it. This requires a special resolution and registration of the change with NSW Land Registry Services within six months, as per section 141 of SSMA.
By following this structured approach, strata communities can effectively address by-law violations, maintain order, and foster a harmonious living environment. Proactive measures and clear communication are key to resolving issues and ensuring compliance with strata regulations.
Expert Assistance for Strata Legal Matters
Handling the intricacies of strata by-laws – from drafting and updating to addressing violations – can be a complex and time-consuming process. This is where professional legal assistance can prove invaluable.
A team of experienced strata lawyers can provide crucial guidance in several areas:
- Amending existing by-laws to better reflect current needs
- Adding new by-laws to address emerging issues
- Removing outdated or unnecessary by-laws
- Navigating the complexities of by-law breaches
With decades of combined legal experience in strata matters, a skilled legal team can offer tailored advice to serve your community’s specific needs. They can help ensure your by-laws are fair, enforceable, and in compliance with current legislation.
Whether you’re facing challenges with existing by-laws, need assistance in creating new ones, or require support in dealing with violations, expert legal guidance can streamline the process and help avoid potential pitfalls.
For those seeking professional assistance with strata legal matters, it’s advisable to consult with a specialised legal team. Many firms offer initial consultations to discuss your specific situation and outline how they can help address your strata scheme’s unique needs.
Remember, proactive legal support can often prevent issues from escalating and contribute to a more harmonious strata community.
