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I'm seeing an increasing number of posts where the phrase “you can assume such and such a by-law applies” pops up.
Can we just be clear that you can't assume anything when it comes to your bylaws. The Model by-laws in the Act only apply if they were adopted by your building or complex when the strata plan was created (or if no by-laws were adopted at that time).
If your building adopted the model by-laws and the Act has since changed them, your by-laws are still the old ones that operated when you adopted them, not the new ones.
If your building adopted a whole different set of by-laws and they haven't changed, they they apply and the “model” by-laws don't.
So assume nothing in regard to your by-laws. You can say that the probability is that certain by-laws may be in place but you can't be sure and you would be very wise to check before you made any moves … especially those that might cost you money.
One of the most prestigious developments in Sydney “assumed” they had the standard by-law protecting residents from noise until they discovered that their chairman, a real estate agent, had quietly excised it before the first AGM, all the better to facilitate his roaring trade in consolidating two or three apartments into one.
This expensive and iconic piece of real estate was virtually a non-stop building site for the first three years of its existence because owners assumed the standard by-law to protect the peace and quiet of the building was still there but it had been removed.
When it comes to by-laws you can only assume one thing – by-laws that aren't in YOUR by-laws don't apply to your building.
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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Hi Jimmy,
Sorry to correct you on this, but if an OC has no by-laws registered, or no annotation on the strata plan referencing the model by-laws, then the schedule 1 by-laws contained in the act will apply. These are even more basic then the model by-laws which are in the regs.
But otherwise totally agree with this post, ‘assumption makes an ass of you and me’.
Always check the certificate of title and strata plan for the true specifics on any situation.
Mr Strata
If a scheme was registered before the commencment of s42, then subject to any additions, amendments or repeals, the schedule 1 by-laws are the ones that apply: see s42 SSMA.
if a scheme is registered after the commencment of s41, the by-laws that apply are the chosen set from the Regulation unless amended, etc: see s8(4B) of the SSFDA. As I read s8(4B) (being careful not to assume anything Mr Moderator) a strata scheme cannot be regulated with no by-laws, which is a blow to the libertarians among us, but there you go.
Note that there are two main acts: the Strata Schemes Management Act and the Strata Schemes (Freehold Development) Act. There is also a Leasehold Devpt Act, and various regs. Community schemes have their own suite of legislation, which is from time to time surprisingly different from the strata legislation with no clear reason.
The term 'model by-laws' appears in the Regulation and in the SSFDA and probably elsewhere as well – in the 2005 reg.
A recent case which emphasises the broad scope of the power to make by-laws is Casuarina Rec Club Pty Limited v The Owners – Strata Plan 77971 [2011] NSWCA 159 (24 June 2011).
Casuarina gives the by-laws as registered with a scheme a privileged position: it says that they will be very hard to set aside. It also says that a provision in the form of a model by-law cannot be held to be ultra vires, and that a by-law dealing with the same subject matter as a model by-law is in the same situation.
Almost finally, Mr Administrator observes:
“But it makes me think that every opportunity that exists to complicate something that should be simple is leapt upon by our legislators.” This is, of course, true, and it is part of the majesty of the governments of New South Wales. Thing how boring it would be if we all knew where we stood in relation to the law governing strata.
Truly finally, the only way to be sure which by-laws apply is to check with the LPMA as to the by-laws registered for your stata scheme.
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