The SSM Act in NSW allows owners corporations to make a by-law delegating certain decisions to be made by the strata committee. For example, minor renovation decisions. Does this also apply to decisions on whether to issue Notices to Comply for breaches of by-laws and breaches of the legislation by lot owners and tenants?
Paragraph 3 of Section 146 “Notice by owners corporation to owner or occupier” specifically allows this, albeit in a roundabout way, and you don’t need a special by-law. It says “A notice must not be given unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation.”
The specific problem one of my son’s strata scheme has is that some tenants continually park in front of other lots’ garages which means the persons legally entitled to use the garages cannot get their cars in or out, sometimes for several days in a row. They do not have a by-law allowing cars to be towed. Notes left on windscreens do not work. It is quicker to convene a strata committee meeting than an EGM which is important when someone has been blocked from using their car in circumstances such as that mentioned above.
As outlined above, you don’t need to hold an EGM every time you ping an illegal parker. You do, however, need to make sure you have a standard by-law (which you probably have) forbidding parking on common property without written permission. The prescribed Notice to Comply Form requires that the by-law allegedly breached be listed on the NTC.
Query 2: Are there any other functions or decisions that can be delegated to a strata committee? The owners corporation would like to list those delegations in the one by-law.
Section 36 of the Act says that the decisions of the committee are the decisions of the owners corp, and the owners corp can pass resolutions at a general meeting preventing the committee from making specific decisions. However, for the sake of clarity, it would be worth having a by-law that says the committee can make all decisions on behalf of the owners corp, except for those that the Strata Act says must be made in general meeting or have been proscribed by a decision made at a general meeting .
Query 3: A tenant is sharing a unit with people whose names are not on the lease. We doubt that there is a sub-lease of any kind because the landlord denies knowing anything about additional tenants but we don’t know if he is being honest because he was accused previously of allowing over-crowding in his unit. There is no parking spot allocated or even available to those additional tenants and they constantly park on common property and in front of garages as stated in Query 1 above.
Section 258 requires the owner to give the notice of the holder any leases (Maximum fine for failure to do so $550) and the head tenant to give notices of sub-leases (maximum fine $550). So, if the landlord hasn’t provided that information, you go after them on that (Fair Trading mediation then NCAT). If/when they do provide the information, you then go after the Head Tenant for not providing information on the other occupants of the unit. You might do well to set up a security camera to monitor comings and goings from the unit and car parking area as proof of breaches.
3.1 Technically, additional tenants’ cars are trespassing aren’t they?
This has more to do with breaching by-laws about parking on or obstructing common property without permission. Trespassing is entering “inclosed grounds” without permission. They could say they had the permission of the tenants.
3 2 Are owners allowed to photograph the offending cars which show the registration plates as proof?
Yes. You can photograph or film anything or anyone on common property (although you may have to put up a notice at the entrance to the block notifying visitors that there is video surveillance inside).
3.3 Are owners allowed to search who owns the offending cars? If not, who can? A solicitor?
As far as I know, only the police can do this, and under specific circumstances (such as if a crime is suspected)
3.4 Can a lot owner or the owners corporation sue those additional tenants in the local court for trespass because their cars are not supposed to enter the property at all?
Have a look at this web page and this one, then talk to a strata lawyer. I have just noticed that section 34 of the Regulations and 125 of the Act which allowed vehicles left (or abandoned) on common property to be removed have both been repealed. This has been replaced by reference to the Uncollected Goods Act according to this Fair Trading web page. I will be amending my “Move it or Lose it” poster to comply. Watch this space.