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A “notice to comply” is the latest weapon for owners corporations to enforce by-laws. However before issuing a notice, an owners corporation will need to follow certain steps before a penalty may be imposed.
If the owners corporation does not follow certain steps their application to impose a penalty on the offender may be dismissed by the Tribunal or a costs order may be made against the owners corporation, if the Tribunal believes the owners corporation's application is frivolous, vexatious, misconceived or lacks in substance.
The steps to be followed prior to serving a notice include –
1. There must be a complaint in writing with particulars such as the date, time and nature of the by-law breach and witnesses.
2. When the complaint is received, the owners corporation or strata manager may want to speak to the offender and negotiate a solution.
3. The strata manager may issue a notice on behalf of the owners corporation, if the strata manager has been delegated this power under s45(3) of the Strata Schemes Management Act (SSMA). This function must be delegated to the strata manager by resolution at a general meeting.
4. If the function of issuing notices has not been formally delegated to the strata manager, then the person lodging the complaint must put forward a written motion in regards to the by-law breach and the owners corporation or executive committee will need to pass an ordinary resolution in order to authorise the issue and service of the notice to the offender.
5. The strata manager or secretary should then draft the notice and serve the notice personally to the offender.
Before issuing a compliance notice, an owners corporation will need to be satisfied or convinced that there has been a contravention of a specified by-law. The potential for mischief is readily apparent. Section 45 of the SSMA was designed to avoid executive committee members issuing notices on frolics of their own and provides that notices issued by an owners corporation need to be approved at a meeting.
Owners corporation should have a formal by-law enforcement guideline to avoid any potential mischief.
Teys Lawyers have designed a simple and easy to understand by-law enforcement guideline to ensure that the by-law enforcement process is followed and applied correctly by owners corporations. If you would like further details, then please contact us.
Kind regards,
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500