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I’m curious about the legality of special treatment or dispensations for some owners. More to the point how to reverse it?
Basically the committee and strata manager think that compliance or enforcing by-laws is optional. If an owner doesn’t like the terms of a bylaw they can ask for dispensation at a general meeting. The same is done for renovation approvals, authorisation for an insurance claim and even (ahem) extra compensation paid by the OC. It stinks because the only way to get something approved is to be part of a select group of owners which includes the committee. I presume if I go to NCAT it will be argued it was approved by the majority and the committee are not allowed to go against the wishes of the majority.
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I presume if I go to NCAT it will be argued it was approved by the majority and the committee are not allowed to go against the wishes of the majority.
In short, strata law supersedes the majority vote and there is a little-used section of NSW Strata Law (S232[2]) that can, theoretically, get NCAT to compel OCs to enforce their by-laws.
How useful this is, is debatable as the Tribunal seems to have a lot of discretion over how far they go on this and other matters of strata law.
I would say, it would come down to the seriousness or other wise of the leeway that other owners asr given in breaching by-laws and the selectivity of applying that leeway.
For instance, if a privileged group is allowed to breach by-laws in a way that seriously affects the peaceful enjoyment by other residents of their homes – eg wild parties all weekend, every weekend – you might have a case. Or if a select few have been allowed to annex common property and absorb it into their lots, that could form the basis of a case too.
But if it was something like parking a stroller or bike under a stairway, against the use of common property rules but where it’s not in anyone’s way, then your case might be thrown out.
However, if you consider the accumulated benefits for a limited number of people add up to something significant, you could apply for mediation at Fair Trading which would at least put them on notice – and make you very unpopular with the chosen few.
Or you could propose a motion to your next AGM that the strata committee identifies which by-laws it is not prepared to enforce and amends them accordingly. Your accompanying notes would then give you an opportunity to at least list the various breaches that have been allowed to go through to the keeper.
And don’t worry too much about defamation – as long as you aren’t deliberately dishonest and personally abusive, it has been well established that there is a lot of leeway in the cut and thrust of strata scheme discourse.
Section 232 Orders to settle disputes or rectify complaints
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised 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.
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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