By-laws
By-laws are additional laws that apply to all residents of a strata scheme. They cover such things as the behaviour of the residents of the scheme and the use of common property. The Act allows for standard by-laws but these can be amended or additional by-laws added. Old strata schemes (prior to 1 July 1974) had different ‘standard’ by-laws. Most schemes will have many additional by-laws which have been added over the years.
A new strata scheme may, if it chooses, adopt what are called the “model” by-laws which are part of the Act or alternately a new scheme can register its own by-laws. The by-laws for both existing and new schemes can be amended or repealed by the owners corporation but only at a general meeting.
The Act places obligations on owners (as well as mortgagees and covenant chargees in possession of a lot and lessees and occupiers of lots) to comply with the by-laws. The standard by-laws cover such things as:
• safety and security measures;
• details of any common property of which the use is restricted;
• the keeping of pets;
• parking;
• floor coverings;
• garbage disposal;
• behaviour;
• architectural and landscaping guidelines to be observed by lot owners; and
• matters appropriate to the type of strata scheme concerned.
By-laws can only be made in accordance with a “special” resolution, essentially a vote of 75% in favour of the motion. See the separate section on meetings which explains in detail the voting process. By-laws have no force or effect until they are registered with the Registrar General which is part of the NSW Department of Lands.
In some situations by-laws can only be made with the “consent” of the owners concerned. Concerned is generally taken to mean detrimentally impacted but can also mean some advantage passes to the owner. If the owner is required to make a payment because of the by-law, the consent of the owner is required. Consent is often taken to be a signed consent form (signed by the owner “concerned”) but other options are available.
For example, a by-law that says that owners must pay for their own door locks is unenforceable if the owner refuses to sign a consent form. If the previous owner signed a form that “consent” lasts in perpetuity.
An owners corporation can only make by-laws for the following purposes relating to the lots or the lots and common property for the strata scheme:
• control;
• management;
• administration; and
• use or enjoyment.
This is a broad definition and covers a vast range of issues. The Act has some restrictions on by-laws, for example a by-law cannot prevent children or guide dogs. There are also limitations that apply to the creation of by-laws during the initial period and there is considerable complexity associated with permitting or prohibiting animals. The chapter on bylaws provides considerable guidance.
It is difficult to challenge a by-law that is more than two years old.
enforcing by-laws
Registered by-laws are enforceable, for example if an owner refuses to comply with a by-law that covers car parking, type of floor covering, pets or garbage etc it is possible for the executive committee or owners corporation to meet and resolve to serve a notice on the owner (or tenant) concerned (called a “Notice to Comply with a By-law”). If delegated, this can be done by the strata manager.
If the person then re-offends an application can be made to the Tribunal who can impose substantial fines. See the Chapter on enforcing by-laws for the process to follow.
The important message is to abide by the by-laws or risk a substantial fine.
obtaining a copy of the by-laws
It is quite simple to obtain a copy of the by-laws that apply to a strata scheme. Visit the Department of Lands website (www.lands.nsw.gov.au), go to the section of the site called “Land Title Searches”.
Perform an online search – called a “Title search”. Enter your credit card details and also the strata plan number (the format is normally CP/SP12345) and the site will provide a copy of the current Certificate of Title (CT). The Certificate of Title will list all of the registered by-laws that apply to the strata scheme and will also include a reference number which is called the dealing number for each by-law or set of by-laws. There might be more than one dealing number (there could be hundreds).
You then need to perform a second (or more) online searches to obtain a copy of each by-law. The search is called a “Dealing image”. Enter your credit card details again and your email address as well as the dealing number obtained from the CT above and a copy of the by-law will be sent to your email address.
The cost of performing these online searches is about $10.00 for each search (2007).
Alternately the strata manager should provide a copy for a nominal fee. If the strata manager refuses to provide you with a copy of the by-laws for a scheme you should consider finding a new strata managing agent!
additional or new by-laws
The Act defines fairly strict procedural requirements for making new by-laws and the amendment or repeal of existing by-laws. By-laws cannot generally be created overnight, due process must be followed which requires a notice and agenda of the meeting to be issues, a notice period allowed, voting to occur and consent to be obtained. See the chapter on meetings and bylaws for the relevant detail.
Consent is an important concept for owners to understand. New by-laws cannot be created that impact the rights of owners without their “consent”. For example, a by-law cannot be created to say that “only owners on the ground floor can use the pool” if the other owners do not agree to it. The Act and case law essentially says that a by-law cannot be created that impacts an owner without their permission.
By-laws are commonly created when owners want to carry out substantial renovations or alternately if owners seek to use common property. Alternately the notice board is an excellent mechanism for day-to-day communications between residents.
