NSW: Q&A Enforcing By-laws by Issuing Notices to Comply

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This article and Q&As discuss enforcing NSW strata bylaws and the issuing of a notice to comply.

Table of Contents:

• QUESTION: A lot owner with a dog causes nuisance to surrounding lots. What can the owners corporation do? Is there a legal way to handle this?
• QUESTION: Our elder neighbours below complained about our footstep noises on our hard floors. We have been served a breach notice and instructed to fix the issue. No expert reports have been obtained. Do we need to comply?
• QUESTION: A resident pet owner does the right things cleaning up dog poo on common property but not within their own lot. How do we enforce clean up of their lot and stop the smell!
• QUESTION: Is there a standard template letter to advise residents or remind them of the ByLaws?
• QUESTION: With seeking permission, a lot owner has planted a cactus on a roof section of our building. Is this a breach of bylaws as this lot owner has changed the common property?
• QUESTION: What do you do when a Strata Committee member is the one breaching By-laws? How does a resident commence proceedings against a Strata Committee member?
• QUESTION: The Strata Committee has resolved to issue a Notice to Comply. Can either the Secretary or Chairman sign the Notice to Comply and issue it?
• QUESTION: Our owners corporation chairman allows his dog to foul the garden which is common property. What action can be taken for this bylaw breach? Can he be fined?
• QUESTION: Is the owners corporation able to issue ‘on the spot’ fines for what they consider breaching strata bylaws? Is this even legal? How do we challenge this?
• QUESTION: Can one member of Body Corporate Committee send their own breach of bylaw letter to an owner without contacting other members of the Body Corporate to discuss?

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Question: A lot owner with a dog causes nuisance to surrounding lots. What can the owners corporation do? Is there a legal way to handle this?

We have a problem with a lot owner who owns a dog on our building.

• The dog is left for long periods unattended causing excessive barking,
• excrement is left on common property,
• urine overflows off the balcony to the unit below and
• the dog’s running through the unit causes noise also to the unit below.

What can the owners corporation do? Is there a legal way to handle this?

Answer: Issue a notice to comply with the by-laws and continued breach attracts fines/penalties.

Any of the strata managing agent, strata committee and/or owners corporation (subject to various authorities by resolution and as set out in the Management Agency agreement with a strata managing agent) may issue a notice to comply with the by-laws and continued breach attracts fines/penalties.

Depending on whether you have a by-law conditionally permitting pets or don’t have one at all, NCAT has powers to issue Orders:

156 Order for removal of an animal not permitted under by-laws

1. The Tribunal may, on application by an interested person, order a person to cause an animal to be removed from a parcel within a specified time, and to be kept away from the parcel, if the Tribunal considers that the person is keeping an animal on the parcel in contravention of the by-laws.
2. An order under this section ceases to have effect if the keeping of the animal is subsequently authorised in accordance with the by-laws.

158 Order for removal of an animal permitted under by-laws

1. The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.
2. The Tribunal may order that the person–
   
   1. cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or
   2. within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.<

Attempt at mediation through NSW Office of Fair Trading is first required.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #429.

Question: Our elder neighbours below complained about our footstep noises on our hard floors. We have been served a breach notice and instructed to fix the issue. No expert reports have been obtained. Do we need to comply?

I live in a 2 year old building with elderly residents below. These neighbours often complain about footsteps noises from our unit. The lounge room is hard ceramic tile flooring and bedrooms are carpeted.

What can I do? Strata issued us with a final warning to comply with bylaw 14 by placing rugs.

I’m questioning why I need to place rugs or carpet to reduce noise? I did not change the flooring. Also, there is no expert report about how many decibels of noise. The complaint and noise breach is only based on information supplied by the elderly neighbours. Why should my family and I suffer?

Answer: You are not allowed to create a nuisance.

Unfortunately, your rights to exposed flooring have to be balanced with the rights of other residents to quiet enjoyment.

You are legally required to comply with by-law 14 and, in our view, the requirement to place rugs is a reasonable one to prevent the transmission of noise.

Further, you are not allowed to create a nuisance (likely from your flooring).

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #429.

Question: A resident pet owner does the right things cleaning up dog poo on common property but not within their own lot. How do we enforce clean up of their lot and stop the smell!

A lot owner has felt it necessary to draw the Strata Committee’s attention to repeated instances of pet faeces not being promptly cleaned up. The odour is abhorrent for neighbours and offensive to visitors entering our property.

 

We note that dog faeces is promptly taken care of within common property. However, what can be done to encourage dog owners to take the same immediate steps within their lot?

 When asked they become as offensive and their dogs!

Answer: You should check your by-laws. It is likely that the smell would constitute a “nuisance” under the strata legislation.

You should check your by-laws, as in our experience most pet by-laws impose on the owner of the pet the responsibility to clean up after the pet inside and outside of the lot and require that no malodour escapes from the lot.

Even if your by-laws or the owner’s pet approval does not specify the above, it is likely that the smell would constitute a “nuisance” under the strata legislation.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #425.

Question: Is there a standard template letter to advise residents or remind them of the ByLaws?

I am a new strata secretary.

We have battled and are still battling owners who were dysfunctional, they are difficult to deal with. I want to remind them of the ByLaws.

Is there a standard template letter to advise residents or remind them of the ByLaws?

Answer: In a word no.

In a word no, each strata firm just makes up one to suit themselves (so you can do the same) if you are the Secretary of the scheme.

Please ensure you don’t provide the standard bylaws if there are others that have been registered. Also, note that the standard ones vary depending on when your scheme was built.

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #400.

Question: With seeking permission, a lot owner has planted a cactus on a roof section of our building. Is this a breach of bylaws as this lot owner has changed the common property?

A lot owner has planted a cactus on an area described in the strata plan as common property-Awning, and common property-Roof.

This area forms the ceiling of the units below and has water proofing and stones on top to protect the area from sun and birds. There are no railings and is open to the environment and between 5 the 7 levels up the building.

No permission was given by the owners corporate. Does this contravene the act and has this lot owner has changed the common property? Should they be served with a notice to comply?

Answer: If anything is installed on common property without the permission of the committee, the committee can take steps to remove it.

If anything is installed on common property without the permission of the committee, the committee can take steps to remove it. It has no legal authority to be there. The committee are charged with administering the scheme between General Meetings of the owners, so how the common areas are maintained is within their gambit.

Fair Trading reports they have seen more leniency by scheme’s during COVID by committees on enforcement of bylaws. They are finding committees understand that people are home and some are extremely isolated and thus schemes are allowing different things for people so they can manage the stress, which is unprecedented for some at this time.

Fair Trading (NSW) have indicated that scheme’s that wouldn’t ordinarily allow pets, are, and so on. Committee’s need to find a very considered balance at this time between enforcement of bylaws to maintain harmony in a scheme where now people are not just living together but working at home together, and what they can let go during this period to maintain people’s humanity when their ability to do so much, is limited.

It is possible this person is unaware of the protocols and so the committee may wish to decide that for the next 3 months there won’t be any damage, and so you can simply to inform the person of the appropriate process, and that the committee will review if it can stay in the coming months when a face to face meeting can be held to discuss it.

This will let them know it’s not OK to just commandeer common property and it may not be permanent, and so when life has returned to normal the committee may then advise it has to go.

NB the discussion should be confirmed in writing by the strata manager so they can’t refute they were told later. It should refer to the extenuating circumstances of COVID.

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #365.

Question: What do you do when a Strata Committee member is the one breaching By-laws? How does a resident commence proceedings against a Strata Committee member?

What do you do when a Strata Committee member or members breach any one of the Owners Corporation’s By-laws which in turn is a breach of one of the provisions in the Strata Schemes Management Legislation? How does a resident commence proceedings against the Strata Committee member/s?

Answer: The same process applies as would apply to any other interested person.

The quick answer is – the same process applies as would apply to any other interested person.

The lot owner would need to apply for mediation with Fair Trading, and an attempt at mediation would need to be made. Note that any of the parties can refuse to attend mediation in which case Fair Trading supply you with a letter saying mediation was unsuccessfully attempted. The lot owner could then make an application to NCAT in their own name against the members of the strata committee if they were seeking personal orders against the (note they would have to name the strata committee members against whom they were seeking orders) or the Owners Corporation if they were seeking orders against the owners corporation. The claim could potentially be made under either s37 or s232 of the Strata Schemes Management Act 2015.

Allison Benson
Kerin Benson Lawyers
Legal Practitioner Director
E: [email protected]
P: 02 4032 7990

Please note: This is not legal advice. You should seek legal advice particular to your situation.

This post appears in Strata News #328.

Question: The Strata Committee has resolved to issue a Notice to Comply. Can either the Secretary or Chairman sign the Notice to Comply and issue it?

Answer: The chairperson’s only role is to chair meetings so they should not sign and issue the notice to comply.

The notice to comply is a prescribed form: Notice to Comply With a By-Law.

The chairperson’s only role is to chair meetings so they should not sign and issue the notice to comply. The secretary could sign the form. However, I would strongly encourage the Owners Corporation to affix the seal rather than just signing it. This means either the strata manager or the secretary and chair should witness the seal being affixed.

Allison Benson
Kerin Benson Lawyers
Legal Practitioner Director
E: [email protected]
P: 02 4032 7990

Please note: This is not legal advice. You should seek legal advice particular to your situation.

This post appears in Strata News #325.

Question: Our owners corporation chairman allows his dog to foul the garden which is common property. What action can be taken for this bylaw breach? Can he be fined?

Answer: The breach by the Chairman is no different from any other owner breaching a bylaw. A breach of bylaw notice is to be issued.

The breach by the Chairman is no different from any other owner breaching a bylaw. A breach of bylaw notice is to be issued.

146 Notice by owners corporation to owner or occupier:

1. An owners corporation for a strata scheme may give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.
2. The notice must contain a copy of the specified by-law.
3. A notice must not be given unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation.
4. Subsection (3) does not apply to the giving of a notice by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.

PLEASE NOTE: If you follow this link to Section 146, click on Secretary. The definition in the Act will come up. This is not the secretary in the scheme, it is the commissioner.

If the Chairman breaches this bylaw again, then fines and/or penalties can be sort via NCAT.

PLEASE NOTE: If you wish to pursue the fine then you will need good evidence. For example, witness statements, photos if possible etc. This evidence will need to be of things the Member can rely on just as if you were in the Supreme Court.

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #317.

Question: Is the owners corporation able to issue ‘on the spot’ fines for what they consider breaching strata bylaws? Is this even legal? How do we challenge this?

We recently had an entertainment unit/furniture delivery. The delivery trunk entered into the delivery bay and because we did not make a booking, they fined us $300 for breaching strata bylaws and locked our keycard until we paid on the spot.

We did not tell the delivery truck to enter, they followed another car already going in. Strata accused us of allowing the truck in. Also, they allowed us to do the delivery but fined us anyway.

Is this legal to charge on the spot fines for breaching strata bylaws or is there any laws protecting us from this type of fine or are we able to challenge strata?

Answer: The owners corporation does not have the power to issue fines. Only NCAT has jurisdiction to issue fines.

The owners corporation does not have the power to issue fines. You should try to obtain a refund on the basis that only NCAT has jurisdiction to issue fines. Of course, they may be trying to disguise this as some “administration” fee via a by-law but it is unlikely to be upheld if challenged.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #225.

Question: Can one member of Body Corporate Committee send their own breach of bylaw letter to an owner without contacting other members of the Body Corporate to discuss?

What is the process and procedures for the Body Corporate Committee when contacting an owner regarding a breach of the bylaws? Can one member of Body Corporate Committee send their own letter to a lot owner without contacting other members of the Body Corporate to discuss?

Answer: One member of the NSW Strata Committee has no power to unilaterally issue a notice to comply with a by-law.

One member of the Strata Committee has no power to permit him/her to unilaterally issue such a letter. In the context above, only the NSW Strata Committee by a duly convened meeting / paper resolution could resolve to issue a notice to comply with a by-law.

If you are inquiring about issuance of a Notice to Comply with a by-law, the procedure is clearly set out in Section 146 of the Strata Schemes Management Act, 2015 (NSW) – note subsection (3) which prohibits the issuance of a notice to comply in the absence of an Owners Corporation / Strata Committee resolution.

Although, if you have a strata managing agent with delegated authority to issue a notice to comply, then your strata managing agent can issue the Notice without any resolution of the strata committee (or Owners Corporation) – see subsection (4) above.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #140.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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