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If a scheme was registered before the commencment of s42, then subject to any additions, amendments or repeals, the schedule 1 by-laws are the ones that apply: see s42 SSMA.
if a scheme is registered after the commencment of s41, the by-laws that apply are the chosen set from the Regulation unless amended, etc: see s8(4B) of the SSFDA. As I read s8(4B) (being careful not to assume anything Mr Moderator) a strata scheme cannot be regulated with no by-laws, which is a blow to the libertarians among us, but there you go.
Note that there are two main acts: the Strata Schemes Management Act and the Strata Schemes (Freehold Development) Act. There is also a Leasehold Devpt Act, and various regs. Community schemes have their own suite of legislation, which is from time to time surprisingly different from the strata legislation with no clear reason.
The term 'model by-laws' appears in the Regulation and in the SSFDA and probably elsewhere as well – in the 2005 reg.
A recent case which emphasises the broad scope of the power to make by-laws is Casuarina Rec Club Pty Limited v The Owners – Strata Plan 77971 [2011] NSWCA 159 (24 June 2011).
Casuarina gives the by-laws as registered with a scheme a privileged position: it says that they will be very hard to set aside. It also says that a provision in the form of a model by-law cannot be held to be ultra vires, and that a by-law dealing with the same subject matter as a model by-law is in the same situation.
Almost finally, Mr Administrator observes:
“But it makes me think that every opportunity that exists to complicate something that should be simple is leapt upon by our legislators.” This is, of course, true, and it is part of the majesty of the governments of New South Wales. Thing how boring it would be if we all knew where we stood in relation to the law governing strata.
Truly finally, the only way to be sure which by-laws apply is to check with the LPMA as to the by-laws registered for your stata scheme.
Yeh, I said it was hard, and the adjudicators don't have a clear position, and they are not disposed to consider 162(3A)(c) – OC failing to perform one or more of its duties – but it is still an approach that works, from time to time. I have only limited experience of a complaint to the OFT under the Property Stock and Business Agents Act, but that experience does not give rise to optimism.
Jimmy
Yes, you should always check the bylaws that apply to your strata scheme, and I should have made that more clear. Sorry. The flooring by-law 14 that I quoted is not new; it is applied by s42 of the SSMA to 'old' schemes – that is, pre-january 1997. It appears as by-law 15 in the 'model by-laws' that appear in the strata schemes management reg 2010.
Both those sets of by-laws can, of course, be adopted, modified, supplemented or what ever.
So yes, I have come across other flooring by-laws in various strata plans, but the one most often applied in the 12 years I have been involved in strata law is the one I have quoted above.
In passing, the great advantage of the 2010 'model' by-laws is that they contain a compulsory notice provision, which is the new number 14:
“14 Changes to floor coverings and surfaces
(1) An owner or occupier of a lot must notify the owners corporation at least 21 days before changing any of the floor coverings or surfaces of the lot if the change is likely to result in an increase in noise transmitted from that lot to any other lot. The notice must specify the type of the proposed floor covering or surface.
(2) This by-law does not affect any requirement under any law to obtain a consent to, approval for or any other authorisation for the changing of the floor covering or surface concerned.”
This is an idea which should, probably, be adopted by every strata scheme – that is, the by-laws should be amended to include a notice provision. The idea that by-laws should retain their numbers when the legislation changes is, I fear, beyond hope in this universe.
I haven't seen your managing agency agreement so I cannot comment on your case. If a strata manager's failings are such that the management of the strata scheme is not functioning satisfactorily, then there is a procedure whereby you can apply to have a managing agent appointed by an adjudicator: see s162 of the strata schemes management act. The usual order gives the incoming agent all the powers of the oc, ec and office holders. The incoming agent displaces the existing one. But this is a hard type of order to get, because it has the effect of appointing a dictator to your scheme for (usually) 12 months, which is a big step. Also, agents may put a premium on their fees for having to take on an ornery building.
New chum in this forum and still navigating. But usually s117 is not the way to attack a floor noise problem; the standard by-laws have a floor covering by-law that reads
14 Floor coverings
(1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.
(2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.
The ‘disturb peaceful enjoyment’ wording is generally generally interpreted quite well by adjudicators.
The AAAC guidelines are also very useful.
Some quick tips:
i if you are offended by a change to floor covering, make sure that you gather evidence. Get an exercise book and keep a ‘noise log’ listing the times when the noise was annoying, and the kind of noise.
ii if the noise happens when friends are over, get them, if possible, to make a short note of what they heard and when.
iii on the other hand, if you have just ripped up the carpet and underlay and polished and you are now getting noise complaints, do not expect that putting down rugs will solve the problem. ‘sound proofing’ a hard floor can be a complex and horrendously expensive exercise.
Floor noise disputes can run and run, and they can be horrendously expensive. At CTTT appeal level it is not uncommon for both sides to hire acoustic consultants to do so-called ‘tap tests’ on the floor.
The real answer to this is that one should be very restrained about changing floor coverings.