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11/04/2013 at 11:14 am #8785
Just realised something that has not occurred to me before. When you purchase a strata property you have to sign a legal document that you will comply with the bylaws. So for owner occupiers you are obliged to comply with bylaws.
BUT
In NSW a tenant has to sign a tenancy agreement which only states that he has to be given a copy of the bylaws, their is nothing to indicate that he has to comply with them, which seems to me a fatal flaw in enforcing bylaws against them.
Previous posts have talked about implied consent when towing or clamping an illegally parked vehicle, but this relied on the implied consent given by agreeing to comply with the bylaws (but in a tenants case they have not even given implied consent).
Seems to me tenants have more rights than owner occupiers.
In QLD the tenancy agreement states
(2) The tenant must comply with the by-laws. so in QLD it’s not a problem
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11/04/2013 at 12:30 pm #18255
IN NSW the Act clearly states the owners and lessees – and even occupiers – have to comply with the by-laws.
In fact, it goes so far as to say that any lessee or occupier has to abide by the by-laws as if they had signed and sealed them all personally.
44 Who is required to comply with the by-laws?
(1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:
(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and
(b) contained mutual covenants to observe and perform all the provisions of the by-laws.
(2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.
(3) In this section, lessee means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.
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.
11/04/2013 at 6:30 pm #18257Guys,
Nobody is saying an OC can’t use the same remedy for By-Law breaches against tenants as against owners, namely a Notice to Comply and/or application to the CTTT.
Nobody is denying that s44 of the Act applies equally to owners and tenants.
I pointed this situation out more than a week ago in the “Parking in a resident parking space” topic.
In fact, I pointed it out more than a year ago in the GAP survey for the Strata Review. Not that that got into the government’s proposals.
But you’re both missing two points:
1) Tenants don’t usually read the s44 of the Act, so are unaware of their obligation.
2) If the standard lease were modified to include a By-Law compliance clause (as in QLD), then the OC would have an extra avenue to ensure compliance – a By-Law breach would be a Breach of Lease, which could (eventually) lead to eviction.
KP, if my memory serves me correctly, in NSW a purchaser of a strata title property does not sign a legal document promising to comply with the By-Laws.
So, no threat of eviction for owners, ever.
That may explain why leases don’t have the compliance clause.
Can’t put more conditions on tenants than on owners, can we?
11/04/2013 at 9:54 pm #18258
@Kangaroo said:… you’re both missing two points:.1) Tenants don’t usually read the s44 of the Act, so are unaware of their obligation.
2) If the standard lease were modified to include a By-Law compliance clause (as in QLD), then the OC would have an extra avenue to ensure compliance – a By-Law breach would be a Breach of Lease, which could (eventually) lead to eviction.
The ‘point’ (of the question raised) is that the law clearly requires tenants to abide by by-laws. This is unquestionable and is not debatable (unless you are a CTTT adjudicator).
Your point 1 – that tenants don’t read the Act – is speculative (albeit with a high probability of of accuracy).
I think the lease should be modified to TELL tenants that they have to abide by by-laws (as I will be saying in my Flat Chat column next week) but the fact that it doesn’t shouldn’t excuse them from being pursued for breaches of the by-law.
But consider this – if you send a tenant or an owner a Notice To Comply, it must include a reference to the by-law they are alleged to have breached. Only someone who was off their meds (or a CTTT adjudicator) would excuse someone for a subsequent breach on the basis that they didn’t known there was a by-law.
And, by the way, tenants do get evicted for consistently breaching by-laws, whether they have read them or not.
However, being a belt and braces kind of guy, I agree there should be a line in the standard lease saying tenants must abide by the strata scheme’s by-laws or they will be in breach of their tenancy agreement and could face eviction.
It doesn’t change anything except put the onus firmly on the tenants to find out what the by-laws are.
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.
06/05/2013 at 4:05 pm #18397Can someone provide me with an idea of the process and costs involved if a matter proceeds to the CTTT after a tenant/owner failing to comply with a Notice to Comply?
06/05/2013 at 9:34 pm #18398@Willie said:
Can someone provide me with an idea of the process and costs involved if a matter proceeds to the CTTT after a tenant/owner failing to comply with a Notice to Comply?Click HERE – it’s all spelled out with links to the forms you might need.
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.
06/05/2013 at 9:59 pm #18399The NSW Strata Schemes Management Act 1996 includes
“44 Who is required to comply with the by-laws?(1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:
(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and
(b) contained mutual covenants to observe and perform all the provisions of the by-laws.
(2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.
(3) In this section, ‘lessee’ means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.”
17/07/2013 at 3:42 pm #19017Hi Gurus,
Some of the of neighboring strata blocks’ owners and tenants have approached some of the residents of our strata block to discuss “out of control tenants behavior”. In short there are a few residents of neighboring blocks (apparently ours included) who like to have loud parties and/or loud discussions on their balconies until sometimes day break. The question was asked “can we apply to someone to have these tenants warned and if the don’t settle down have them evicted”. My understanding is that we would have to have each EC issue NTC’s against the troublesome tenants/owners, do the CTTT mediation/adjudication etc., or apply for orders under the EPA.
Jimmy and others have mentioned that tenants that don’t obey by-laws can be evicted. I thought only an owner could have a tenant evicted. I get the strong feeling that some of the owners of these units don’t care or are absent interstate/overseas. Is there a way that an EC or other party can get an unruly tenant evicted and if so how?
18/07/2013 at 9:31 am #19023Sig – whilst tenants can be evicted for non-compliance with By-Laws (a condition of NSW Tenancy Agreements) those proceedings must be brought before the Tenancy Division of the CTTT by “persons” entitled to do so; Owner/Landlords and their Agents.
Until such time as the State Government implements that aspect of my Submission to its Strata Review
an Owners Corporation is not a “person” in the Tenancy Division of the CTTT, and its options to address behaviours such as those raised in your post are limited the ones you mention AND to draw in Managing Agents and absent Owner/Landlords by copying all correspondence to them, and by reminding them that there’s at least one precedent (in NSW) where a Local Court held the Owner/Landlord legally responsible for their tenant’s noisy behaviour.
19/07/2013 at 8:59 am #19018@andyj said:
Jimmy and others have mentioned that tenants that don’t obey by-laws can be evicted. I thought only an owner could have a tenant evicted.
I may have said that you can get tenants evicted, which is true, but only landlordscan make it happen (see Whale’s post below). The Owners Corp needs to put enough pressure on the landlords to pursue the eviction and, yes, there is a precedent (see THIS story).
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.
19/07/2013 at 12:18 pm #19032Jimmy, Whale,
Thank you, this is wonderful information. There was another gathering last night and it has been revealed that one of the offenders is an owner in an adjacent strata unit. Based on the information you have given me it looks like we can put pressure on the owners to behave, or where the lot is leased put pressure on their tenant (and the owner) to behave. I also touched base with the Department of Fair Trading and they informed me that even if there isn’t a formal lease in place the “occupier” is legally bound by the by-laws and strata laws whether they are, tenant, owner or otherwise.
Many thanks to you both from our neighborhood community!!!
19/07/2013 at 4:01 pm #19033Have a look here for a roadmap on the two main ways of taking effective action via the CTTT. And go here if you want to take this out of the strata realm and into the local courts for a Noise Abatement Order.
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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