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16/07/2021 at 8:00 am #57166BobT77Flatchatter
I am on the committee of a community title strata in South Australia. We have several lot owners who have not been maintaining their lots. The bylaws state that the maintenance of the lots is their responsibility and that they must maintain the lots in good order. We have notified the owners that they are in breach of the bylaws however several have taken no action. We could fine them as allowed by the bylaws but we would prefer for the defects to be rectified. What steps can we take for this situation to be rectified?
16/07/2021 at 1:12 pm #57170
The SA community titles by-law breaches process can lead to action at the magistrates court so it would be good to establish an agreed process. Also, unusually in Australian strata, the body corproate or management committee can issue fines for alleged offences.
So this is how I would handle it.
Hold a general meeting at which you firstly (if you haven’t already done so), establish a sliding scale for by-law breach penalties. This could be,say, $200 for the first offence, $350 for repeat offences and the maximum $500 for three-peats.
Then hold a management committee meeting to issue notices of “alleged” breaches of by-laws, detailing what the breach is and what the expected remedy is. I think you might need to be very precise here as this could end up in court.
The owner has 60 days to mend their ways or pay the fine. See this Legal Services Commission of SA fact sheet for more information.
At this point, if they haven’t fixed the problem, you could either hit them with another fine or escalate this to your local magistrates court. See this fact sheet where there is pro forma wording of the breach notice you would need to use, plus a link to the official notice.
At court you can ask for orders compelling the owners to do the work (which is why you need to be specific in the breach notice.) FYI: The owners can also take the scheme to court to have the breach notices overturned.
But before you did any of that, I would issue a notice to all owners that the management committee is about to get serious about maintenance of lots.
We are becoming increasingly concerned by the deterioration of the physical condition and appearance of some lots in this scheme which we feel not only undermines the amenity and value of all our properties but is also in breach of our by-laws, namely (XXX).
We want to allow all owners the opportunity to bring their lots up to an acceptable level and will be issuing notices of work that we feel needs to be done to individual lots.
With that in mind, we will ask affected owners to present a plan of necessary works to the committee for approval withing 30 days.
Where appropriate, we will endeavour to coordinate tradespeople to undertake the work on different lots at the same time with a view to reducing costs to individual owners.
However, if owners don’t present an acceptable work plan, with quotes from professional trades attached, within the designated period, we will issue an an “alleged breach” notice and and a $200 fine for breaches of by-law (XXX).
This will be done under the terms of Section 101 of the Community Titles Act which says (in part):
101—Power to enforce duties of maintenance and repair etc
(1) A community corporation may, by notice in writing to the owner of a lot, require the owner—
(a) to carry out specified work in pursuance of a duty of maintenance or repair imposed on the owner by this Act or the by-laws;
(b) to carry out specified work to remedy—
(i) a breach of this Act or the by-laws by the owner or a former owner or an occupier or former occupier of the lot; or
(ii) a situation that is likely to result in a breach of this Act or the by-laws;
If the lot owner fails to remedy the breach, we will escalate the case to the Magistrates Court seeking orders compelling the owner to undertake the work. If need be, we will also seek legal cost in any cases we pursue in this way.
We apologise if this seems heavy-handed, but the deterioration is significant and serious in some cases and you are entitled to know that there may be consequences for failure to abide by your by-laws.
And it’s at this point, especially if there are a large number of lots needing repair, that I feel your committee should first speak to a strata lawyer experienced in the vagaries of SA community title laws.16/07/2021 at 5:27 pm #57173kaindubFlatchatter
I am no expert is SA strata.
However I think you need to look at the wording of the bylaw.
The bylaw may say that lot owners have to maintain the lot, but that does not , depending on the exact wording, compel a lot owner to carry out the work at any particular time.
The intent of most of the bylaws regulating who does maintenance is to make it clear who is responsible in terms of payment and scheduling.
I hope I am clear.16/07/2021 at 5:34 pm #57177
However I think you need to look at the wording of the bylaw.
Well, that sent me off looking for standard Comuunity Title by-laws for SA and according to this page in the Law Services Commission (SA) Handbook, there are none”
“Unlike the Strata Titles Act 1988 (SA), the Community Titles Act 1996 (SA) does not include a standard set of by-laws. The Community Titles Act 1996 (SA) requires developers of community schemes to draft individual by-laws (Community Titles Act 1996 (SA) ss 12, 34) which reflect the nature of the particular scheme
. The by-laws must cover the administration, management and control of the common property; must regulate the use and enjoyment of common property; and must regulate the use and enjoyment of community lots to give effect to the scheme description .”
Maybe BobT77 could send us a copy of his scheme’s.19/07/2021 at 8:23 am #57211BobT77FlatchatterChat-starter
Thanks Jimmy-T and Kaindub, really appreciate your advice on this issue. Have attached the bylaws as requested. It is a tricky issue and one that we don’t want to take escalating action on until we know where we stand.19/07/2021 at 8:40 am #57214
Here are the relevant sections of the by-laws of this particular scheme:
Maintenance and Repair of Buildings or other Improvements on Community Lots
30. The owner of a community lot must:
30.1. maintain the community lot and all buildings and improvements on it in good repair;
30.2. carry out any work ordered by any statutory authority in respect of the community lot or the
buildings or improvements on it.
31. The owner and the occupier of a community lot must keep the community lot and any buildings
and improvements on it in a clean and tidy condition.
32. The owner and the occupier of a community lot must properly maintain the landscaping on a
40. A person who contravenes or fails to comply with a provision of these by-laws is guilty of an
offence. Maximum penalty: $500.00.
It’s absolutely clear that there are obligations on all owners and penalties for not fulfilling them. Your problems will arise if owners decide they’d rather pay the fine that pay for repairs. And that leads to the question of how often you can issue breach notices and fines and on how many different aspects of the by-laws you can allege breaches by the one lot.
Of course, in the event of outright refusal or failure to undertake the work, you could then go to the Magistrates Court to seek orders.
But that’s way down the track. I would start with a motion at a management committee meeting committing the scheme to requiring owners to maintain and repair all lots, inviting owners to participate in work that can be done collectively (to save money) and a low-key warning that there are steps that the scheme can take to compel owners to do the work.20/07/2021 at 8:54 am #57225BobT77FlatchatterChat-starter
Appreciate the detailed response. You are right in that rectification is the goal however the possibility of a fine being imposed may be a sufficient incentive should it be required. Hopefully seeking an order from a magistrate isn’t required given the associated costs.
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