Strata By-laws:

Section 49 of the Strata Scheme Management Act 1996 (NSW) provides some very important restrictions on the operation of a by-law. Under the provision of section 29, no by-law can do any of the following:

• Act so as to prevent a dealing with the lot by transfer, mortgage, lease etc;
• Act so as to change an Oder made under Chapter 5 of the Act unless that change has had unanimous approval and relevant consent have been given;
• Act as to restrict children, except for certain circumstances;
• Act as to prevent the keeping of a guide dog for the visually or hearing impaired.

As stated above, by-laws can be changed. Sections 47 through to 56 govern the process whereby by-laws can be amended. It should be noted that by-laws that are Special By-Laws will require unanimous resolution at a meeting of the owners’ corporation for a change to be registrable.

By-laws can be drafted in a way that may be difficult to understand. Usually, legalistic language is avoided because the rules and regulations are intended to be functional, i.e., they are intended to be easily comprehendible by those who will live by them in the strata scheme. Nevertheless, should there be any uncertainty about the application of a by-law, it may be a good idea to seek legal advice on the rights and liabilities that a course of action could enliven. Where there is constant confusion or dispute about the effect of a by-law, the owners’ corporation may contemplate making the necessary changes to resolve any ambiguity giving rise to the confusion.  Our Strata lawyers or strata by-law lawyers are able to provide advice on the strata by-laws and how these can be interpreted, amended, enforced or complied with.

Disputes concerning by-laws and their application can lead to protracted litigation in Court. This is often a very expensive exercise and ruinous to the harmonious relationship that should be aimed for in any living arrangement of close proximity like a strata scheme. Negotiation and alternative dispute resolution should be the first steps taken to resolve any dispute before formal Court proceedings are commenced. The following entities deal with the strata scheme, and can be parties to a dispute:

• Strata Manager;
• Owners’ Corporation;
• Executive Committee;
• Office Bearers;
• On-Site Manager;
• Registered Proprietors (i.e. owners);
• Occupiers (i.e. those who reside on strata property but do not have legal title to the freehold);
• Contractors;
• Service Providers.

Some of the typical areas of dispute between the above parties may include matters relating to the following:

• By-Laws drafting;
• By-Laws interpretation;
• Contract drafting;
• Contract interpretation;
• Legislative interpretation;
• Enforcement actions;
• Recovery of outstanding levies;
• Drafting of additional or special by-laws;
• Amendment of existing by-laws;
• Dealing with the responsibilities of managing agents acting under authority;
• Proposed development and building & construction disputes;
• Alternative Dispute Resolution including:
  • Negotiation,
  • Mediation,
  • Reconciliation,
  • Conciliation.
  • Litigation before the:
    • Consumer Trader and Tenancy Tribunal,
    • The Court system.

Enforcement actions may need to be taken if and when there is an owner or occupier of strata title that is accused of being in breach of a by-law. Often, breaches are not made in bad faith and the individual may not have been aware that what he or she was doing constituted a nuisance, was offensive to a neighbour or otherwise breached a by-law. For this reason, without compromising on your legal position in the process of doing so, it is best to first approach the individual through polite correspondence, notifying him or her of the breach and steps that should be taken to resolve the matter. However, sometimes this is not enough and a recalcitrant occupier or owner may need to be dealt with in stronger terms. In these situations, legal advice should be taken in relation to instituting Tribunal or Court proceedings.   Our Sydney strata lawyers or strata by-laws legal team is able to provide comprehensive, reliable and cost-effective legal advice, in this area of the law.

The Strata Manager relies on levies to be able to discharge his or her duties in relation to the strata scheme. Failure to pay these levies can therefore hamper his or her ability to do his work and lead to a mismanaged strata scheme. Recovery of strata levies is a form of debt collection and the processes involved are similar to those under the ordinary debt collection procedure. In the event that this problem is compounding, advice should also be sought in relation to restructuring operations so as to keep arrears to a minimum.

By-laws must be drafted in clear and precise language. This may be the difference between the by-law being rejected or accepted. It is advisable that a legal practitioner with experience in dealing with by-laws and similar instruments be retained to draft any additional by-law or any amendment to an existing by-law. Drafting an instrument correctly the first time will invariably save a lot of time and money if ever there is a dispute in the future.