Strata by-laws may be ‘admin nightmare’ but tenants need to know building rules

23 March 2021

By KATRINA CREER

Property managers who fail to supply tenants with a building’s strata by-laws, are risking a hefty fine – even if they are not at fault for the breach.

As of March 2020, an up-to-date copy of documents pertaining to building rules must be supplied when lease agreements are signed.

Sandra McGee, a Life Fellow of the REINSW and member of the Property Manager Chapter Committee, said many agents are unaware that they no longer have seven days to produce the by-laws, under the latest changes to the Residential Tenancies Act.

The only exemptions are premises which are under the Strata Schemes Development Act 2015, the Community Land Development Act 1989 and the Community Land Management Act 1989, where landlords still have a week to provide them.

The problem is there is no simple way of accessing the documents.

What should be a routine procedure has become difficult, with some strata managers and agents now charging a fee to produce the paperwork.

Ms McGee wants NSW Fair Trading to step in and create a website, where all the by-laws could be kept and accessed without a charge.

“At the moment it takes time and is another chore for admin staff because you need to check for each new tenancy,” she said.

“Just like they keep a register of all our licences and certificates, NSW Fair Trading could keep the current by-laws against the strata plan number.”

Michelle McLean, who chairs the REINSW’s Property Management Chapter Committee, agrees the current system is an ‘admin nightmare’. While agents must provide an updated version of by-laws, they are not routinely provided and can quickly be rendered out-of-date.

“Sometime there are difficulties obtaining the by-laws from the strata managers which results in delays and in some instances, in the end, I suspect that many property managers don’t even supply them,” said Ms McLean, a Senior Property Manager and Compliance Manager at Leah Jay, based in the Newcastle region.

“Many wouldn’t realise that it is a breach, but it actually gives the tenants grounds to get out of the lease.

“If you have a tenant, who moves in, doesn’t like the property and the agent hasn’t done their due diligence – either because the Strata manager wanted to charge for the by-laws or was being difficult – it has a roll-on effect. The tenant is actually able to get out of the lease without penalty due to this breach.”

It is important for property managers to factor in the length of time required to access the by-laws when preparing the lease documentation.

There are 18 model by-laws contained under the Strata Schemes Management Act 2015. These apply to new strata schemes or can be adopted by existing schemes. They cover issues such as noise, floor coverings and smoking.

These may be altered by the body corporate to reflect the preferred ‘lifestyle of the strata scheme’, however, changes cannot be ‘harsh, unconscionable or oppressive’. They cannot restrict having children living at the property or prohibit the keeping of companion animals.

Any changes must be lodged with the Registrar-General within six months of the resolution being passed.

According to NSW Fair Trading, a copy of a scheme’s by-laws must be kept on the strata roll and be available from the secretary or managing agent.

Under section 26 (2A) of the Residential Tenancies Act, failure to provide a copy of the by-laws, as required, carries a fine of 20 penalty points – this can be around $2,000.

Dean Eades, director of Southern Strata Management, said they use a straight-forward document management system to keep track of property by-laws, which they email when requested without cost.

It is one of the advantages of using a professional company for strata management rather than a resident.

“We have just taken over the management of a block of ten apartments and they have simply not done the consolidation at all. The last addition to the issue of title was back in 2006 – they still have all these different by-laws listed on the title,” said Mr Eades, a member of the REINSW Strata Chapter Committee.

“The problem is the lack of action by strata managers who haven’t completed the consolidation that they should have.”

If by-laws can’t be obtained through a strata manager, it may be possible to find them through online title search companies for a fee; however, it is essential to ensure these are the most up to date to comply with legislation.

Find out more information on by-laws from NSW Fair Trading:

By-laws in your strata scheme

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