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By Jimmy Thomson
There are more than 90 changes to the strata laws that come into force in NSW on November 30. Here are the 21 that will affect you in ways you might actually notice.
Forced sales
The big ticket item in the strata law changes, the government prefers to call this “collective sales” but it basically means that 75 percent of owners can compel the other 25 to do something radical with a building that may or may not be well past its use-by date.
- Redevelopment: Just 75 per cent of owners can vote to sell the strata block to developers for demolition and replacement with something bigger, shinier, safer and more expensive. Currently only one dissenting vote can stop this.
- Renewal: Alternatively, the same proportion of owners can make better use of what they have, and not lose their homes. By adding apartments on to the existing footprint, taking advantage of modern building techniques and relaxed height allowances, they can then move back in after builders have updated and extended the building, income from the sale of the new apartments paying for the work.
New by-laws and rules
- Pet by-laws: New “model” by-laws are more pro-pet than no-pet but they only apply to new schemes and even then the owners get a choice of models. Basically new schemes can choose between pets being allowed provided you tell the committee and pets allowed provided the committee gives permission (which may not be unreasonably refused). There are plenty of other by-laws and actual laws to deal with pets that turn out to be a nuisance, so there’s no need for alarm. Existing by-laws in established schemes will not change unless a considerable majority of owners choose to change them.
- Parking crackdown: Owners corps will be able to make arrangements with local council parking rangers to patrol their car parks. This is aimed at rogue parking in open strata carparks near commuter hubs. They will not patrol underground car parks for safety reasons.
- Move it or lose it: OCs will be able to move cars parked illegally on common property to a place where parking is allowed. Like, out on the street to a parking meter where it can be fined, for instance? Watch that space.
- Smoking a nuisance: Smoke from smoking has been defined as a nuisance, making it easier for you to raise a complaint about smoke drift from another apartment. On the other hand, owners corps can pass a by-law defining an area of common property as a designated smoking zone.
- Overcrowding: Owners corps will be able to pass by-laws setting maximum limits on the number of people living in a unit, albeit with a minimum of two per bedroom and no limits on family members. This is aimed directly at sub-lets overcrowded for commercial purposes and the fines are massive (see item 9).
- By-law reviews: By November 30 next year, every scheme in the state must conduct a review of their by-laws. The rusted-on chairs and secretaries who think they can send out a notice telling owners they have read their by-laws (probably for the first time) and they are fine and dandy reckon without those owners who are itching to bring their in-house rules up to date.
Disputes and fines
Some strata residents live in fear of breaching by-laws, others blindly trundle through life as if they didn’t exist – until they get a Notice To Comply from their strata manager. Under the new laws it will be easier to resolve disputes as well as to punish strata’s bad boys and girls. Here are the major changes.
- Higher fines: The current maximum fine is $220. That goes up to $550 for regular by-law breaches. On top of that, it’s $5500 for a first overcrowding offence and $11,000 for subsequent breaches. Slumlords beware!
- Fines go to owners corp: Currently you and your neighbours (via your strata committee) make all the running at the tribunal but the fines go to the government. Now the money will go to the owners corp, giving ‘do-nothing’ committees an added incentive to take action.
- Internal mediation: Strata schemes will be able to organise their own mediation systems for resolving disputes in-house, before they get out of hand, albeit with potential help of outside agencies like the Community Justice Service. These in-house mediations will be accepted as mandatory precursors to any action at the Tribunal (NCAT).
- Paper adjudications scrapped: Currently, the initial adjudication of strata disputes is done by examination of documents only, with the losing side often appealing at a hearing before a Tribunal member. Now they skip the paper adjudication and go straight to the hearing.
Strata Managers, Building managers and Rental Agents
Many strata managers are wonderful, too many are woeful. The new laws try to limit the damage the bad ones can do, allowing the better operators to rise above the pack.
- Committee curb: Building managers and rental agents can’t be elected to the strata committees unless they are owners in the scheme. Anyone else who has a direct or indirect financial interest in the strata scheme must declare this or face a potential fine of $1100. This reduces the ability of professionals to corral landlord votes and then run the building for their benefit, often to the detriment of residents.
- Insurance Commissions: Strata Managers must declare commissions they receive from compulsory insurance premiums. However, insurance companies will not reduce your premiums by the amount of the commission if you deal with them directly.
- Contract limits: Strata managers can only be appointed for the first year of a new scheme then for three years thereafter. The one-year limit on new schemes gives the owners a chance to assess service providers before making long-term decisions.
Strata Committees
- No more EC: Executive committees have been re-named strata committees. Why? Because some members in some schemes think the old name gives them executive powers and privileges. It doesn’t – but a name change won’t stop the worst of them from assuming them anyway.
- Proxies docked: Proxy farming is about to suffer a major drought with votes from owners who can’t or can’t be bothered to attend meetings limited to one per owner for schemes under twenty lots and five per cent of schemes over 20 lots. Already control freaks who routinely carry 50 percent of the vote to meetings are sending out notices suggesting you vote for a member of their hand-picked committees. Proxy farming is dead – welcome to proxy crop-sharing.
- Tenant reps: Schemes with more than 50 per cent of the residents being registered tenants must arrange the election of a tenants’ rep to the strata committee. The tenant will have no voting power and can be excluded from “sensitive” discussions such as finances and by-law breach complaints. Since the requirement to officially register new tenants in your property is routinely ignored, few if any buildings will qualify.
Renos, dumped goods and debts
- Abandoned goods: Bringing strata law into line with tenancy laws, owners corps will be able to dump or sell goods left for too long on common property by former residents. If the owner comes back to claim them, the OC has to pass on the proceeds of any sale minus the costs of storage and advertising, etc.
- Renovations: Current laws could prevent you hammering a nail into a common property wall without getting a by-law approved. The new regulations separate renovations into cosmetic, minor and major. The first is simply a case of notifying the committee, the second only requires approval by a vote of the committee (not a general meeting) and the last – usually involving structural changes – still require a special resolution at a general meeting.
- Debt collection: Debts for unpaid levies or NCAT imposed fines can be recovered directly through local courts rather than having to first go to the Tribunal to get an order to collect the fine that it previously imposed. It’s probably the clearest case of red tape being cut to make life easier for all of us (except the people who owe us money).
The details of all these changes can be found in three documents The Strata Schemes Management Act (2015), The Strata Schemes Management Regulations (2016) and, to a lesser extent, the Strata Schemes Development Act 2015
This piece was originally run in the Sydney Morning Herald online
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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@JimmyT said:
By Jimmy Thomson
- Move it or lose it: OCs will be able to move cars parked illegally on common property to a place where parking is allowed. Like, out on the street to a parking meter where it can be fined, for instance? Watch that space.
And if the OC moves the car where it will be fined, then why would the fine not be correctly issued to the OC (after the registered owner nominates the OC on the back of the infringement notice).
As satisfying as it would be to stick it to those illegal parkers, it’s not right that the OC causes yet another parking offence.
In item 5. Move it or lose it, it is asserted that “OCs will be able to move cars parked illegally on common property”. I disagree for the following reasons;
Clause 32 of the Regulations is titled: “34 Removal of motor vehicles: section 125 of Act”
Section 125 of the Act heading is: “125 Disposal of abandoned goods on common property”
Section 271 of the Act states: “The Governor may make regulations, not inconsistent with this Act”.Therefore, in this case, the Regulations are limited to abandoned goods. That is, the Regulations cannot extend the scope of the Act to include cars that are merely illegally parked and that are not abandoned. Here the intent of the Act + Regs is clearly for abandoned goods. Even trying to apply the ‘letter of the law’ and with clause 32’s clear reference to s125, I can’t get away from ignoring s125’s heading and that clause 32 is only for abandoned cars.
It would have been better if the writer of the Regulations had made clause 32’s tile to have been “34 Removal of abandoned motor vehicles: section 125 of Act”. I fear many people will fall into the trap of reading clause 32 in isolation and believing it applies to all cars.
Cheers
Ray
To further my position on this matter;
On page 22 of the Regulatory Impact Statement and in seeking feedback on the Regulations, Fair Trading posed the question “17. Does clause 34 provide a fair and reasonable process for dealing with abandoned vehicles on the common property?”. Clearly Fair Trading wrote clause 34 with the intent to address the problem of abandoned vehicles. Refer: here – page 22
And in reply to Fair Trading’s question 17, the Law Society of NSW did make some comments but it did not question the inference or scope of the question; that is clause 34 is only dealing with abandoned vehicles. Refer: here
I fully acknowledge clause 34 is ambiguous as it stands. I initially interpreted it as you have and was elated that there may a better way to address the problem of parking. But the more I read the Act + Regs, the more I concluded that using clause 34 for parking problems wouldn’t stand up. If clause 34 didn’t reference ‘section 125 of the Act’ in the heading, people might be able to get away with it.
Anyway, a robust discussion is good. Maybe via this forum, and with other input, we maybe able to get a clearer picture of what is the scope of clause 34.
Cheers
Ray
Ray, I think Jimmy’s right, there’s no way an OC could be expected to know the intentions of the person who left the car. Also, while the act and regs both use “abandoned” in the heading, the text in both simply refers to “left on common property”. And it refers to “obstructs the use of common property” so would apply if one of your visitor’s spots was unusable due to the abandoned car sitting in it. And, lets face it, you’re not going to stick an abandoned vehicle notice up as soon as a car parks, it’s probably going to be a couple of days, so the 5 days would blow out to at least 7. If someone challenged you after leaving a car around for that long against by-laws and with a notice up, what would be their argument?
Regarding where to put the vehicle… If you were to have it moved to the local Wilsons car park, then that would be legally parked but charges would accrue. This would be the same if you had it moved to the towing company’s holding yard. If, however, the OC moved it to a time limited or meter parking spot and allowed it to stay there in excess of the allowed time, then an offence has been committed by the OC who would be liable for a penalty. The vehicle’s owner has not committed that particular offence and would not be legally liable.
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