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This has probably been asked and answered many times previously but grateful for any wisdom:
The 1996 act provides that the model by laws for a pre existing scheme are those set out in Schedule 1 of the SSMA
(s 42- https://www.legislation.nsw.gov.au/maintop/view/inforce/act+138+1996+cd+0+N)
For a ‘new’ scheme the SSMA states the by laws are those adopted and registered, leaving it open to such a scheme to adopt the model by laws, a variation of them or others should owners wish.
SSM Regulation 1997 s 23 simply states the Model By laws Residential Schemes are in Schedule 1. No reference to pre or post 1996 schemes ( since repealed)
https://www.legislation.nsw.gov.au/maintop/view/repealed/subordleg+279+1997+cd+0+Y
SSM Regulation 2005 s 27states Model By laws Residential Schemes are set out in Schedule 1. No reference to pre or post 1996 schemes (since repealed)
https://www.legislation.nsw.gov.au/maintop/view/repealed/subordleg+505+2005+cd+0+Y
SSM Regulation 2010 s 27 and Schedule 2 sets out Model By laws for residential strata schemes (in force). No reference to pre or post 1996 schemes
Query: whether a pre 1996 strata that has not in general meeting adopted later model by laws is subject to the by laws in Schedule 1 of the SSMA 1996, as amended by any motion passed as a special resolution in general meeting and registered with Land and Property Information; or was subject automatically to the later versions of model by laws when the 1997 and 2005 regs were in force, and without the need for resolution or registration is now subject to the by laws in Schedule 2 of the 2010 Reg?
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Generally speaking, you are bound by the by-laws that were adopted at your scheme’s first general meeting and then amended by special resolution at General Meetings and registered with the Registrar.
There is no automatic update, however, even if the scheme adopted the model by-laws as a package.
If your scheme didn’t formally adopt by-laws when it was formed, the “model” by-laws that were in the regulations at the time it was formed are adopted by default. Again, there is no automatic update.
Many schemes periodically update their by-laws to reflect the community’s wishes, changes in attitudes and new by-laws that have come into the model by-laws in the interim. But this has to be done by special resolution at a general meeting.
I believe there was an catch-all, manadatory update of all by-laws back in the 70s but I am a bit foggy on the details of that. I don’t recall anything happening in the 1990s.
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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