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Kaindub said: My opinion – bylaws are fully enforceable, rules are not.
I don’t think it’s as simple as that. Strata law itself is structured with the Act (laws) and Regulations (rules).
I don’t think you can or should have a specific rigid by-law to cover every little area of strata scheme management, nor do I think that rules are unenforceable if they are covered by a valid enabling by-law.
If a by-law says the strata scheme can impose rules, for instance, on the use of visitor’s parking, and those rules are published as part of the current by-laws (and then re-published if they are changed, for whatever reason) then breaches can be pursued via Notices to Comply.
Don’t forget that a Notice To Comply is basically both a warning and a threat and the warning part must include the specific part of the bylaw that has allegedly been breached.
I can’t see how telling someone to stop breaching rule x of by-law z (which is then spelled out) is not a valid Notice to Comply.
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No, because NSW “rules” can be changed by a simple majority at a general meeting whereas by-law changes require a 75 per cent majority.
If the condition is not created by a special resolution then it doesn’t need a special resolution to change it, and therefor is not a by-law.
The strata committee is often empowered to make decisions on behalf of the owners corproation. But the OC can undo the decisions at a subsequent general meeting.
Apologies to Victoria readers where “rules” is the term used for by-laws.
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I’ve always thought that smoke alarms that are wired back to a central panel are owners corp responsibility, but you refer to “thermal” alarms. Where did they come from? And if they’re not owners corp responsibility, the committee can’t really tell you what to do with them (all safety issues aside).
FYI, Fair Trading’s Common Property memorandum says this, under Owners Corporation responsibilities:
3(h): smoke detectors whether connected to the fire board in the building or not (and other fire safety equipment subject to the regulations made under Environmental Planning and Assessment Act 1979)
So go back to your committee member, and politely ask them how they know your thermal alarms are wired wrongly and where it says that the Owners Corp isn’t responsible for them.
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You’re right that the committee can’t just cancel swipe cards, at least not legally, but they can restrict swipe cards to registered residents.
The law demands that the owners corporation be informed of any changes to the lease of a lot, with information provided as to the identity of the new resident. This is routinely ignored by holiday letting hosts who want their guests to have the same rights of access as residential tenants, but don’t want to tell us who they are.
Short-term letting agencies expect us to stick to the letter of the law when it suits them and ignore the law, such as the terms of development approvals (namely, no holiday lets) when it doesn’t.
So I would make it a security issue. Announce that there will be a periodic audit of the swipe cards for security reasons that may result in swipe cards being cancelled when they are held by someone other than the registered leaseholder or their registered sub-tenant.
Some buildings even have a system that matches the face registered on the computer with the face of the person trying to gain access. Others use fingerprint technology, especially to restrict access to facilities.
As for the threat of legal action – personally, I would push it to the limit (mediation) then back down and find another way of frustrating these parasites.
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Basically, the owners corp is charged with the management of common property and can pass by-laws that enable or assist them in doing that. One of those by-laws would be to allow for rules to be created and imposed.
It is common, therefore, for there to be rules limiting , say, accessto swimming pools and gyms after certain hours as this would not be considered unreasonable.
However, they are overstepping the mark if they limit access to common property as a punitive measure. As our chums at Lookupstrata point out in this factsheet, you can’t restrict owners’ reasonable access to common property so any by-law that attempted to do so would be invalid.
Also you want your rules to be flexible for the simple reason that you are dealing with people and everyone is different. Say you wanted to restrict access to your pool to say 8 am to 9 pm, and then you discover you have a kid in the building who is a potential Olympiand and needs to swim fro a couple of hours from 5 am every morning? Are you really going to restrict them.
So what’s missing from the “enabling” by-law are acceptance that no rule can be in violation of strata law or any superior law, that the rules can be reviewed and changed at any time by a simple majority of the owners corporation and that exceptions can be made provided there is written permission from the committee to do so.
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They should be able to tell you the name of the treasurer (if you have one) or at least the chair. If you get nowhere, submit a motion to the AGM that the accounts for the last three years be audited by an independent auditor.
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It’s impossible for us to say what you’re paying is unfair or otherwise, but what you are looking at is the growing issue of Schedule B costs – the ancillary charges that strata managers can impose, depending on the terms of your contracts with them.
These days, most strata managers will offer a service for a basic fee plus Schedule B charges. Some are pretty fair with the charges – using them to make sure they aren’t doing too much unpaid work – while others see this as an almost limitless source of revenue (and advertise for new agents on that basis).
The easiest way to check is to call up other strata managers in your area and ask how much they would charge for the same work. If your strata manager is unreasonable, then that’s something to consider when their contract comes up for renewal.
And maybe you should propose to your next agm that owners who insist on “dead tree” notices should pay for them, while electronic is free.
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Like fear of worms …
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It feels like a sledgehammer to crack a walnut and any benefits that anyone might accrue in the fairer sharing of unit entitlements would be massively outweighed by the legal costs in the plan that you propose.
I believe there are enough provisions in the Act for the transfer of common and lot property to and from the owners corp, plus the reallocation of unit entitlements, that this could be done quickly and inexpensively without having to redraw the strata plan.
For instance, the owners corp could take ownership of the storage rooms and offer them to rent back to the lot owners under binding exclusive use by-laws, at rents based on the size of the rooms, tied to annual CPI increases.
Or you could just agree on a reallocation of the Unit Entitlements of the current storage rooms (to be rubber-stamped at NCAT) then find a way of bringing the undocumented storage room into the system by transferring ownership to the lot owner then adjusting their UEs accordingly.
Either way, there must be a more elegant, simpler and much less expensive solution available than re-registering the entire strata plan.
And even if you don’t have unanimity (because someone will lose), the prospect of paying extravagant amounts to fix a relatively minor problem – after which they will still lose out – should get the recalcitrants on board.
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Your strata manager shouldn’t be running off to lawyers (especially for bogus legal checks on standard documents) without the strata committee’s say-so. Just say no … or, at the very least, Why?
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I don’t know what kind of advice your strata manager is giving you but the new laws on short-term letting haven’t come in yet so I can’t see how they can base their advice on results issued by NCAT under the old laws.
The old (curent) laws depend on the part of strata law that says you can’t interfere with the buying sell of leasing of a lot. That is interpreted as meaning you can’ prvent people from doing what they want with their property, in terms of leasing it.
Most strata lawyers whom I know say that, under current legislation, if you have a DA that says no holiday letting and you pass a by-law saying you support your council DA, then that is perfectly legal.
The thinking is that, as the owner never had the right to have short-term letting to begin with, you are not interfering with nayone’s rights by imposing a by-law that says you are going to ensure owners abide by the law.
It’s when you start allowing holiday letting with conditions that you are in breach of strata law, because you are then giving the owner the right to breach your planning regs, and then trying to control it.
I think your strata manager has given you really bad advice and I would seek a second opinion from an experienced strata lawyer before you register the new by-law (which I think may be in breach of strata law anyway, and therefore invalid).
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I had already answered this and this stupid platform is deleting my responses (I’m only the webmaster, for heaven’s sake!)
Section 90, below, says the Tribunal can award costs to be paid by specific owners, namely the owners corporation but not the winning owners, via a special levy.
Section 104 (also below) says the Owners Corp can’t ask for a share in costs from owners successful in seeking orders against it, or in defending orders sought by them.
I think the difference is that in Section 90, the parties are seeking a resolution of a dispute but under Section 104, one or other side is seeking orders.
And the significant difference is that under S90, the Tribunal may rule on costs whereas under S104 there is no leeway – the winner can’t be expected to pay.
90 Contributions for legal costs awarded in proceedings between owners and owners corporation(1) This section applies to proceedings brought by one or more owners of lots against an owners corporation or by an owners corporation against one or more owners of lots (including one or more owners joined in third party proceedings).
(2) The court may order in the proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to the lots and in the proportions that are specified in the order.
(3) The owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy.
(4) This Division (other than provisions relating to the amount of contributions) applies to and in respect of contributions levied under this section in the same way as it applies to other contributions levied under this Division.
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
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Abolutely. But you would want receipts to replace the cash in the biscuit tin. on the other hand, how about getting a debit card for the scheme. Pin number known only to a chosed few? That way every purchase is itemised.
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Worn carpets are a trip and fall hazard for older people. Your oldies might be scared more by that and/or insurnce refusals, than the thought of spending money.
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