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Our Building has this By-Law (which does not appear to be registered):
Behaviour of owners and occupiers
An owner or occupier of a lot when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property.Earlier this year, following a disagreement over use (or abuse of visitor carparking), two owners had an argument that turned into pushing and shoving, including racial vilification. The physically larger owner shouted at the smaller one, saying that they are
tenant, who should go back to their country, people have no right to live in the building. The altercation occured on common property, and CCTV provided evidence, without audio. It indicated that the larger one pushed and shoved the smaller one, who was holding on to a baby.
Naturally a complaint was lodged to the ExCo and Strata Manager by the smaller owner about the racial vilification and assault. The ExCo and Strata Manager declined to do anything, and said they would provide the feed on DVD and advised a police report and private action.
Given that we have a by-law about behaviour of owners and occupiers on common property, what are the OC’s rights and obligations in respect of this incident? Is it true that unregistered by-laws cannot be enforced?
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If the by-law is not registered, then it is probably not enforceable. That is certainly the case in the ACT where I am more familiar with the relevant Act.
I think the EC could and should provide support to the victim’s complaint to the police. It could provide written comment along with the DVD that in their opinion the DVD, even without sound, appears to provides ample evidence of assault, not to mention a breach of the OC’s by-laws.
It is difficult for the EC to act as police. The EC’s letter could also go to the offender informing that person that they have provided the police with video evidence and noting that the video is evidence of a breach of the by-laws (perhaps omit to mention that it does not have sound). That could be considered a warning. It is fair to tell both/all parties that the video is being provided to the police, so the letter should be sent to all parties. The letter and video could be sent regardless of whether the victim chooses to press charges or not.
I think the above would be procedurally fair and may be enough for the victim to feel that the matter is taken serious and he or she is supported by their neighbours. It also would tell the offender in a clear, unambiguous way that the behaviour was unacceptable.
Transparency, copying to all parties, is looked on favourably by courts.
nyonyakay – the By-Law that you cite has been around in various iterations of the Legislation governing the operations and management of NSW strata schemes since 1973, and in fact it’s quoted at Model By-Law #6 in Schedule 2 of the current NSW Strata Schemes Management Regulation (2010).
What all that means is that as the By-Law relating to the “behaviour of owners and occupiers” has been embodied in relevant Legislation since 1973, then provided your scheme’s Title was itself Registered at any time after that year, then that By-Law automatically applies!
So provided your Executive Committee (E/C) reasonably believes that an occupier, whether an owner or a tenant, has contravened By-Law #6 then it can instruct the Strata Manager to issue that person with a Notice to Comply using THIS proforma, and if there’s a further breach by that person within 12 months then the E/C can on behalf of the Owners Corporation (O/C) apply to the NSW Civil and Administrative Tribunal for an enforceable Penalty of $550 to be issued to them.
In the unlikely circumstance that the Strata Manager has not been delegated to issue Notices to Comply on behalf of the O/C, then the E/C needs to formally meet to in order to resolve to do that, to minute its decision, and thereafter to provide those minutes and a written instruction to the Strata Manager accordingly.
I hope that clarifies the correct procedures in NSW.
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