Each strata scheme has its own by-laws, which are a set of rules that owners, tenants and visitors must follow. By-laws cover the behaviour of residents and the use of common property.
By-laws are public documents, copies of which can be obtained from the secretary of the owners corporation or by contacting NSW Land Registry Services.
To have force and effect, by-laws must be registered within 6 months after a special resolution has been passed. When the consolidated by-laws are registered, a dealing number is provided, and a notation of the by-laws is placed on the common property Certificate of Title (proof of property ownership).
By-laws can be complicated particularly when it comes to their interpretation, effect and enforcement.
Section 134 of the Strata Schemes Management Act 2015 (NSW) (SSMA) references the by-laws in force for a strata scheme. The SSMA also sets out how by-laws apply, including the requirements to comply, matters by-laws can be provided for and also restrictions.
How to deal with by-law breaches
Dealing with breaches by the occupier of a unit requires skill and objectivity. The initial step is the notification of a breach. The strata manager must gather evidence of the breach which may include photos and/or copies of notices provided to the occupier by a building manager.
A by-law breach notice is issued setting out the relevant sections of the SSMA and detailing the breach (including the relevant by-law breached), providing evidence where applicable and stipulating a time for compliance. The time frame for compliance will vary according to the breach and the time it would take a reasonable person to comply.
If there is no compliance for a determined period by the occupier, then the strata manager must issue a follow up or final letter providing a shorter time frame for compliance. That letter should state that if non-compliance persists then the owners corporation may proceed with the statutory courses of action available to it without further notice.
Assuming the second letter does not achieve the required result with the occupier, the strata manager should confer with the strata committee and, upon their instructions, convene a strata committee meeting and resolve to issue and serve either:
- a section 146 Notice to Comply with a By-Law; or
- apply for mediation with NSW Fair Trading.
If mediation is the agreed way forward by the strata committee, the mediation application should be prepared and submitted online to NSW Fair Trading.
The occupier may agree to attend mediation but if they decline to attend, further steps will need to be taken.
In any event mediation should be a preferred route because it is cheap, quick and has the added advantage that participants control the result and generally this is more conducive to compliance and sits well with the spirit of communal living.
If the strata committee resolves to issue a Notice to Comply with a By-Law, then the strata manager must complete the form approved by NSW Fair Trading. The form also includes the rules for effective service of the notice on the occupier; it may be necessary to prove that the Notice to Comply with a By-Law was actually sent.
Finally, if the occupier does not comply with the Notice to Comply with a By-Law and continues to breach the building’s by-laws, the owners corporation can apply to the NSW Civil and Administrative Tribunal (NCAT) to seek a penalty order of up to $1,100 (10 penalty units) payable to the owners corporation or an Order that the occupier comply with the relevant by-law. An application for an order that the occupier comply with the by-law is made under Section 232 of the SSMA.
How to manage breaches when they go to Tribunal
If either mediation or the Notice to Comply with a By-Law fails to achieve compliance by the occupier, the next step is to complete an NCAT application for Orders.
Unless you are applying for a civil penalty order, an application to NCAT will not be accepted unless mediation has been attempted but was not successful through NSW Fair Trading, a party refused to participate in the mediation or the NCAT registrar considers that mediation is unnecessary or inappropriate in the circumstances.
Although NCAT is said to be consumer-friendly, it does demand that applications be completed properly and be supported by convincing and clear evidence as well as references to the sections of the SSMA and cases to be cited where applicable.
It is recommended that a lawyer act on behalf of the owners corporation, particularly for contentious matters.
If a party wishes to be legally represented in NCAT, a request must be made in writing before or at a hearing (for instance, if the matter is reasonably complicated which is sometimes the case with matters involving breaches of by-laws especially if there is a dispute in relation to the interpretation of a by-law).
To assist with NCAT’s requirements, read the NCAT Fact Sheet which lists the Orders that can be applied for and the information NCAT requires to support the application including confirmation that mediation has taken place.
If you are seeking a non-urgent or interim application you will need to complete a Strata Schemes Application.
Once the Strata Schemes Application has been filed, NCAT provides hearing dates to the parties involved. These are usually direction hearings in which the issues are identified, and a time frame is set for the hearing, including the timetable for each party to exchange their evidence.
To discover more insights on this topic watch our webinar: Become a By-Law Expert.
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