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I am in a strata scheme with a lot of tenants. There are violations of By-Laws of different types (eg. parking, dumping on common property etc). Most of the tenants have Residential Tenancy Agreement with agents on behalf of non resident owners.
The usual method of By-Law enforcement is extremely time consuming especially when the agent is on the tenant’s side. A good proportion of tenants now days do not want to communicate with the strata scheme. They only respond to the agent. The Owners Corp has to send messages to a tenant via the agent and often the agent does not respond to the Owners Corp. Therefore, It is not even known if the agent had contacted the tenant. If it comes to issuing a termination notice for not complying with By-Laws, the agent convinces the landlord to go for a 90 day Termination Notice rather than a 14 day notice. The reasoning is usually that the tenant will fight the 14 day notice and the landlord may lose.
As far as I can see the Owners Corp has little power to enforce any By-Laws in a timely manner. The Notice to Comply and then a request for a monetary penalty is fine, but what if the tenant cannot pay the penalty or takes it to the tribunal. That is another month gone with the tenant still violating the By-Law. And what if the tenant can’t pay. How long would that take to finalise a situation like that.
I thought of an alternative approach and hope that someone can tell me if it’s legal. The new approach is the create a By-Law such as:
Where a tenant, subtenant or resident in a lot repeatedly violates an applicable By-Law even after notices provided, the tenant in the lot holding either a fixed or periodic Residential Tenancies Agreement shall issue the landlord with a 21 day Termination Notice to vacate the premises.
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In this way, after the notices and even a Notice to Comply and still violating the By-Laws, rather than requesting a monetary penalty, take the tenant to the tribunal for violating the By-Law above. The question here is, would the tribunal uphold such a By-Law?
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Hi
I’m not lawyer but considering by-laws have to be consistent with the law I’d say not as only NCAT can evict a tenant.
You may this site helpful: https://www.tenants.org.au/factsheet-13-strata-scheme-tenants
I think your best opportunity to end behaviour is having a civil conversation and if not possible get mediation.
I’m not a lawyer either, but I seem to recall that tenants have to agree to abide by by-laws as a condition of their leases. I also know that owners are responsible for controlling the behaviour of their tenants.
So if the tenants breaches the by-laws and the owner does nothing to stop it, like cancelling the lease, go after the owner. It’s not as simple as one breach and you’re out, but persistent offenders put themselves and their landlords on the wrong side of strata law.
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.
Hi fhutt
The link (Tenants Union) I originally shared I have found to be a helpful site and it states:
No eviction by the owners corporation
The owners corporation cannot evict a tenant – only the NSW Civil and Administrative Tribunal can if it makes a termination order on application by the landlord/agent. The provisions of the Residential Tenancies Act 2010 must be followed when ending a tenancy in a strata scheme.
I see that you’re trying to circumvent the notice being from the OC, owner or agent but still think what you’re suggesting conflicts with the legislation (however not a lawyer). If you’re keen to delve into the legislation to understand it fully here’s the link (go to part 5), https://legislation.nsw.gov.au/view/html/inforce/current/act-2010-042#sec.94
Also, in addition to the the above legislation you need consider if the by-law would be considered to be harsh, unconscionable or oppressive, as that would be another reason it wouldn’t be allowed.
Hopefully that reading proves helpful, and you find a way to negotiate harmonious coexistence.
The By-Law suggested does not evict a tenant but requires the tenant to provide a Termination Notice to the landlord
Which could lead to a perverse outcome; the tenant wants to break their lease and the landlord wants to charge them the statutory break fees.
So they misbehave and then adhere to the OC by law requiring them to give a termination notice to the landlord.
xCAT would most likely support the tenant in this situation leaving the landlord without recourse to payments due for the breaking of a lease.
Hi fhutt,
Just a quick reply.
I noticed the term ‘No eviction by Owners Corporation’ in your link to the Tenants Union.
But, that is not legislation. I would like to find that.
The agreement is not between the OC and the tenant and when you read the legislation the only party they reference that can apply for termination is the landlord ie therefore only the landlord or their agent. If you read part 9, you see this confirmed as to who can apply to NCAT in relation to breaches:
190 Applications relating to breaches of residential tenancy agreements(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.
(2) An application may be made—
(a) during or after the end of a residential tenancy agreement, and
(b) whether or not a termination notice has been given or a termination order made.
(3) A landlord’s agent may make an application on behalf of a landlord.
Here’s the steps that the landlord can take against the tenant are:- A landlord may warn a tenant that they are breaching the residential tenancy agreement.
- A landlord may apply to the NSW Civil and Administrative Tribunal (NCAT) for an order that the tenant stops breaching (breaking) the tenancy agreement.
- In the most serious cases the landlord may give a tenant a termination notice then apply to NCAT for an order terminating the tenancy.
The link to the legislation states the Tribunal MAY order termination
I believe the use of the word MAY in this context is because until they review they may rule in favour of the tenant, so it’s not a given that they will.
I think circle back to Jimmy’s advice (pasted below) is your best option:
So if the tenants breaches the by-laws and the owner does nothing to stop it, like cancelling the lease, go after the owner. It’s not as simple as one breach and you’re out, but persistent offenders put themselves and their landlords on the wrong side of strata law.
Anyhow, I could be wrong but I do think the by-law you’re considering isn’t in the spirit of the law. However if you wanted to pursue it perhaps you should discuss with a lawyer and prior to doing that understand the support of other OC members as I suspect many of the landlords would not be supportive of this by-law and if you don’t have the numbers you would have invested a lot of time and energy needlessly whereas you could have put that time and energy into pursuing the landlord.
Best of luck, hope you get the matter resolved.
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