This article is about the importance of registering strata by-laws in NSW, explaining why registration is essential under the Strata Schemes Management Act 2015 and outlining the process for how by-laws are formally registered.
In a previous blog I have spoken about by-laws including what they are and why they are important and also on key limitations on by-laws.
These blogs are here:
Today I wanted to talk about the importance of registering by-laws and how they are registered.
Why register your by-law?
Very simply, the job is not done once your owners corporation has passed a special resolution to approve your by-law. Your by-law must be registered on the title of the common property of your strata scheme. If it is not registered, then it is of no force or effect due to the requirements of s141 of the Strata Schemes Management Act 2015. An application to register the by-law must be lodged within six months of the by-law being passed. If it is not lodged for registration within six months of being passed it cannot be registered and must be re-passed at another general meeting.
The key takeaways are first, a by-law has no effect if it is not registered. By this I mean that it cannot be relied upon to authorise works or acts, to establish common property rights such as an exclusive use of part of the common property or to regulate behaviour. Secondly, if the by-law is not lodged for registration within six months of being passed it cannot later be registered.
How are by-laws registered?
When a new by-law is passed it must be added to the set of consolidated by-laws for the scheme. Since the 2015 reforms all strata schemes have had to register new by-laws as part of a set of consolidated by-laws. This means that when a new by-law is passed, a lawyer or your strata manager (or sometimes a registration agent) will prepare a form approved by the NSW Land Registry Service that includes the date of the meeting at which the by-law was passed, the text of the new by-law and all the current registered by-laws. If the scheme’s by-laws have not been consolidated and kept in a form that can be edited such as MS Word then you may have to consolidate the current by-laws or copy type the existing consolidation to complete the form.
The change of by-law / consolidation form is then signed by the owners corporation by it affixing its seal in accordance with s258 of the Strata Schemes Management Act 2015. Generally, your strata manager will affix (apply) the seal and witness it.
Whoever has witnessed the seal being affixed to the change of by-law / consolidation form will be asked to also sign a PEXA authorisation form to permit the registration of the change of by-law form on the PEXA system. PEXA is a digital registration platform where by-law changes, transfers (sales), caveats, leases and other interests in property are registered with the NSW Land Registry Service. The PEXA authorisation form will require the witnesses to have their identities verified to enable the registration.
Once the change of by-law form and the PEXA authorisation are complete your lawyer or conveyancer or a registration agent will submit the form for registration on PEXA and pay the relevant fees (your lawyer may call them disbursements as they are third party charges that they must pay on your behalf).
Once the document is submitted, the NSW Land Registry Service team review the proposed change. If they have any queries they will send the person who lodged the form on PEXA a requisition with their queries. Sometimes, but not always, that incurs an additional fee.
Once the NSW Land Registry Services has conducted its checks and is satisfied with the form. it registers it and sends the person who lodged the form an Information Notice to notify them that the change of by-law / consolidation form has been registered. Once this form is received it means the new by-law has been registered.
How long does it take to register a by-law?
Well, the answer is that it is as long as a piece of string. There are a lot of factors including, whether the current by-laws have to be consolidated or copy typed, when the owners corporation’s seal is affixed to the change of by-law/consolidation form, when the form is posted back to the person who is to lodge it, whether the person’s witnessing the seal being affixed need to have their identities verified, whether there are any requisitions and the case load of the NSW Land Registry Service at the time the form is submitted for registration.
I hope this assists. As always, please seek legal advice specific to your particular situation.
Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This post appears in Strata News #760.
Have a question or something to add to the article? Leave a comment below.
Read next:
- NSW: What Makes Strata By-Laws Unconscionable? An update
- NSW: Q&A Can the OC issue fines for strata scheme bylaw breaches?
- NSW: Q&A Do We Need a ByLaw For That?
This article has been republished with permission from the author and first appeared on the Allison Benson website.
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