How to compel EC to issue breach of By Law

The smoking incident wasn’t about a breach of by-laws but was rather about an Owner/Landlord not attending to complaints about his tenant’s habit.

In answer to your question, NO an owner cannot specifically compel their Executive Committee or the Owners Corporation to issue a Notice-to-Comply (with a by-law), but if a properly supported (i.e. with evidence) formal request (i.e. via a Motion to be placed on the Meeting Agenda) for either to do so by an owner is refused or has not even been considered after the expiry of 2 months from the date of the request, then that owner can seek Orders under Sect 138 of the NSW Strata Schemes Management Act (1996). 

Hi, I have a similar but different problem to the one above.

I’m an owner occupier, apartment on the ground floor. The resident above me stands on his balcony, leaning over the railing, and while smoking, drops ash down, which the wind carries onto my gate and property. The ash splatters onto me when I open my gate. The ash, once blown down onto my verandah, never leaves, and I have to clean it up. My plants, which by strata rule I’m obligated to maintain, all died.

For some years now, I keep bringing it to the strata’s attention. They talk to him, write him letters, I ask him to show more consideration when I see him smoking, it still continues. The strata has no power to fine him. So there is no impetus to stop for him, he just gets letters he gets to throw away. Because he is also an owner occupier, he doesn’t have a landlord that can enforce anything. Meanwhile, as a lifelong non smoker, I am continually exposed to his waste ash. I’ve told the strata that they have an occupational health and safety obligation to me, but they keep on saying there is nothing they can do.

Can anyone offer me any suggestions?

Thank you so so much.

ccgirl asked….

If I take my complaint to the NCAT do I address my complaint against the Executive Committee for not enforcing the by-laws or against the offending owner for breaking the by-laws?

 

Ans: Your complaint should be against the Owners Corporation (O/C) for not enforcing its By-Laws, but note that Sect 138 may only be used if the specific Breach that you’re referring to is not covered by any of the other Sects under Part 4 of the Act (i.e. 138 – 162), or if a formal / written request by you for the O/C, incl. via the Executive Committee (E/C), to enforce a By-Law had not be acted upon within 2 months. Note also that if you’re relying purely upon Sect 138, Cl. 2, then a minuted decision of the O/C or E/C not to enforce a By-Law would be considered as it “acting upon” your request.

and…..

From my reading of Sec 138 this only seems to apply if an Adjudicator has been appointed. Is this correct or am I missing something?

  Ans: NO, you’d be seeking Orders from an Adjudicator if your attempt to Mediate your dispute with the O/C failed.

I am in NSW and in a similar situation to ccgirl but would prefer to avoid having to go to go down the formal NCAT process.

I think if I was able to show my Executive Committee where the Act specifies they have to enforce the by-laws they will more than likely comply. I have looked at the Act but cannot find where it specifically states that the Executive Committee/Owners Corporation must enforce by-laws.

Are you able to point me in the right direction?

@Willie said:
Is someone able to assist in directing me to the appropriate section of the NSW act where it requires the Executive Committee to enforce by-laws?

There is nowhere in the Act that says “The EC must enforce by-laws” but it is clearly implied as one of the EC’s duties.

We put this issue to a very senior staffer at Fair Trading and they said this:

“The by-laws are binding on all owners and occupiers and it is the responsibility of the owners corp to oversee and enforce them via Notices to Comply, mediation or penalties through the NSW Civil Administration Tribunal.

“The EC may decide that certain behaviour does not constitute a breach, but they can’t say they are not responsible for administering by-laws.”

So what do you do if you have a complaint but no one is listening?

“Write to the EC secretary requesting a motion be put to an EC meeting, or even general meeting,  to pursue a by-law breach by whatever means, giving the committee full authority to pursue whatever action may be required if the person in breach does not respond.”

And failing that, if they do nothing in two months, or refuse to take action, you take the EC to NCAT for orders under Section 138, which says, in part:

138   General power of Adjudicator to make orders to settle disputes or rectify complaints

(1)  An Adjudicator may make an order to settle a dispute or complaint about:

(a)  an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or

(b)  the operation, administration or management of a strata scheme under this Act.

(2)  For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:

(a)  it decides not to exercise the function, or

(b)  application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.