Lot owners from NSW are wondering about the NSW bylaws and the bylaw review.
Table of Contents:
- QUESTION: Can a majority Executive Committee vote to decide to maintain and comply with their pre-existing 2015 Strata By-laws?
- QUESTION: Where can I find the by-laws that apply to our scheme?
- QUESTION: Our bylaws took 12 months to register. Are they still valid or do we have to go back to a full general meeting? Also, are there penalties for not registering on time?
- QUESTION: We have carried out our NSW bylaw review and now wonder how we register the new bylaws and who we register them with.
- QUESTION: There does not appear to be any information on what (if anything), owners’ are required to do during their NSW ByLaw Review process if they determine that no changes are warranted.
Question: Can a majority Executive Committee vote to decide to maintain and comply with their pre-existing 2015 Strata By-laws?
- Is it compulsory for an existing Strata, say registered prior to July 1974, to adopt or comply with the new NSW State Strata Management Act of 2015?
- Can a majority Executive Committee vote to decide to maintain and comply with their pre-existing 2015 Strata By-laws?
Answer: No, this is not necessary as they were not changed.
- Yes. All strata schemes, regardless of when they were registered, must comply with the current legislation, being the Strata Schemes Management Act 2015.
- No. There are certain by-laws which apply to strata schemes which will depend on when the strata scheme was registered. Please see section 134 of the Strata Schemes Management Act 2015.
A by-law can only be made, amended or repealed by way of a special resolution at a general meeting.
David Bannerman
Bannermans Lawyers
E: [email protected]
P: 02 9929 0226
This post appears in Strata News #453.
Question: Where can I find the by-laws that apply to our scheme?
Answer: Either you can carry out an online search or you can provide us with your strata plan number and we can conduct same for you on your behalf – the fees would be at cost approximately $25 per dealing search.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #445.
Question: Our bylaws took 12 months to register. Are they still valid or do we have to go back to a full general meeting? Also, are there penalties for not registering on time?
In November 2017 we revised out bylaws and instructed our Strata Manager to register the consolidation. We then found out that the by-laws were not registered until October 2018.
We are now looking at revising the bylaws again. We note there is one bylaw we don’t recognise and there was not passed by our AGM of 2017.
Are any of the by-laws that took 12 months to register valid or do we have to go back to a full general meeting.
Also, is are there any penalties for not registering the by-laws in the required time.
Answer: By-laws have to be registered within 6 months of being passed and if not, they are of no force and the motion needs to be passed again.
This is too complex at first blush without knowing meeting dates, etc. The owners corporation should be speaking to a solicitor.
By-laws have to be registered within 6 months of being passed and if not, they are of no force and the motion needs to be passed again. See section 141 of Strata Schemes Management Act 2015
141 Procedure for changes to by-laws
- An owners corporation may, in accordance with a special resolution of the owners corporation, change the by-laws of the strata scheme.
- A change to the by-laws of a strata scheme has no effect until–
- the owners corporation has lodged a notification with the Registrar-General in the manner approved by the Registrar-General, and
- the Registrar-General has made an appropriate recording of the notification in the folio of the Register for the common property.
- The secretary of the owners corporation must keep a consolidated up to date copy of the by-laws for the strata scheme.
- A notification cannot be lodged in the Registrar-General’s office more than 6 months after the passing of the resolution to make the by-law.
There’s no penalties for not registering by-laws however the form requires the date of the resolution is put on the form and I would be surprised if by-laws could have been registered 6 months after they were passed at a meeting.
Andrew Terrell
Bright & Duggan
E: [email protected]
This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.
This post appears in Strata News #363.
Question: We have carried out our NSW bylaw review and now wonder how we register the new bylaws and who we register them with.
The owners corporation has carried out our NSW bylaw review in line with NSW legislation requirements and unanimously agreed at the review meeting to change and update some of the existing bylaws.
We are now wondering how and who do we register the new bylaws with.
If you could assist with providing information on this process it would be greatly appreciated.
Answer: My best suggestion is that the owners seek the services of a strata solicitor to provide the relevant motions for adopting/changing the by-laws they wish to change.
I can only assume that the owners corporation is one without a strata manager.
My best suggestion is that the owners seek the services of a strata solicitor to provide the relevant motions for adopting/changing the by-laws they wish to change and then also have them register the new by-laws once passed – the by-laws need to be considered at a general meeting and motions need to be passed by special resolution.
It can be fairly complex to register by-laws and whilst an owners corporation or strata manager can undertake this process themselves, I suggest the use of a solicitor to ensure that the motions are correct and the by-laws properly registered.
Andrew Terrell
Bright & Duggan
E: [email protected]
This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.
This post appears in Strata News #169.
Question: There does not appear to be any information on what (if anything), owners’ are required to do during their NSW ByLaw Review process if they determine that no changes are warranted.
Back in November 2016 Revisions to the Strata Schemes Management Act stipulated the need for owners’ to review their existing by-laws within 12 months to determine whether they require any customisation to suit residents’ lifestyle.
There is an abundance of information detailing the need for mandatory registration of any resulting changes or additions to the by-law. Plenty of help on complying with the Registrar General’s Office and lodging a ‘Change of By-Laws’ form.
However, there does not appear to be any information on what (if anything), owners’ are required to do during their NSW ByLaw Review if they determine that no changes are warranted.
Do the strata’s existing (unaltered) By-laws also need to be lodged with Registrar General’s Office?
How can owner’s check to see whether if or what By-laws have ever been previously lodged?
Answer: That is likely because there is nothing that must be done.
That is likely because there is nothing that must be done. Under the new regime, if, for example, you were a pre-1996 scheme, the folio of the common property certificate of title is automatically updated by LPI to show that the Sch 1 by-laws of the 1996 Act are now superseded by the Sch 2 by-laws of the 2015 Act. You must, however, at the time of the next Change of By-laws produce a Consolidated List of by-laws with your registration documentation.
The strata scheme’s existing by-laws are already registered with the Registrar General’s office, and, therefore, do not need to be “re-lodged”. It is, however, open to you to lodge and register a Consolidated List of By-laws (so that all the previous registered dealing numbers are removed from the common property certificate of title and replaced by a single document and dealing number).
Yes, you undertake a search of the common property certificate of title eg CP/SP12345 and all dealings/Changes of By-laws will appear thereon. This can be generally ordered for a small search fee.
Related Post: NSW: Special Arrangements For Consolidated By-Laws
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Have a question about the NSW bylaws, a bylaw review or something to add to the article? Leave a comment below.
Read next:
- NSW: Repeated Breaches – The Washings on the Balcony!
- NSW: Challenging Unfair By-Laws – Recent Cases Give Some Guidance
- Fair Trading NSW: By-laws in your strata scheme – Review of all strata by-laws
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I am the “Honorary Administrator” of a small strata scheme in NSW consisting of 4 town-houses.
Our building was constructed in the early 90s.
Where can I find the by-laws that apply to our scheme?
Hi No1Optimist
Leanne Habib, Premium Strata has responded to your question in the above article.
In 2014 I lobbied the then Minister about the absolute craziness of the need to download dealing after dealing after dealing to determine what an OCs by-laws were.
One needed the original by-laws and then a host of dealings that changed the by-laws and one had to work through the changes to come to what was current as the by-laws changed over time. In some cases a ‘brief’ might need to work through 20+ dealings to get from what was originally registered to what was current. It was crazy.
Part of the purpose of the by-law review was to see SPs lodged a consolidated set of by-laws so that only one dealing needed to be downloaded to determine the by-laws of any particular OC. A much more sensible way to find a SP’s by-laws.
I suspect it was an oversight of those writing the new legislation not to include the word consolidated in s178 as that would have meant if there was no change at the review an SP was still required to lodge a dealing with the ‘consolidated’ by-laws.
If there is no change to the by-laws then as the Act stands it appears nothing needs doing but if an SP has previous dealings that change the by-laws, but made no changes at the review, then it is in the interest of making life easy for everyone that even though there is no change the current by-laws are registered in a consolidated form.
Section 178 2(e) should have said … the (consolidated) by-laws for the time being in force for the strata scheme
Just to expand on the above
Top thread because I have had to deal with all this rubbish myself in the past and some of the responses to your questions are inconsistent with info I was given by Lands and others.
Where can you find your by-laws?
Indeed you can download the dealing and reverse engineer them if you do not have a consolidated form registered but that is not the easiest path.
Ask the secretary for a copy as it is a requirement of the Act for the OC to keep a copy under s 178 2(e) and 141 3.
If they do not cough them up then you can do a records search to see them for $34.10 (inc GST) under s 182 but that requires more paperwork than just asking. The most inefficient way would be via a third party doing the search for you. There is lots of info on the net about how to get your by-laws yourself. If you are happy just to pay for it then engage a third party but ask the secretary for a copy is my suggestion.
Are your by-laws still valid if not registered within the timeframe set out by the Act?
Contrary to the answer given I would tell you they are. Once registered they are valid until challenged and nothing in the Act contradicts that position.
In fact my own SP lodged after the 6 months and , surprise Andrew, Lands were happy to proceed with the registration until I questioned it. The OC then claimed they had passed a new resolution at another meeting. That meeting never occurred. Lands registered the by-laws on the basis of regularity after the fake date was placed on the original lodgment.
This amounts to fraud under s 141 of the Real Property Act just as would your SP having a by-law someone had registered without a special resolution at a meeting.
There is no consequence for failing most of the requirements of the Strata Schemes Management Act and lots of agents know it and so do savvy SC members and owners.
But fraud under the Real Property Act is an indictable offence you might say; and that is correct.
Humours part of it is when I tried to have charges laid for the fraud nobody cared. Not the police, not Lands, not FT. Nobody. So even though we live in a society where we are expected to be able to rely on the integrity of things register with Lands the bottom line is if people register things under the Torrens Title system by fraud not much is going to happen.
Lands have cleaned there act up since I gave them heaps of stick, including their legal staff who were hopeless, over the fake registration from my own SP and now it seem they actually scrutinize the 6 month date requirement. Lots of new policy papers flowed from me giving them stick.
Buy I expect your by-laws as registered are valid until contested for the flaws and non compliance issues, even then they might still be good.
Best to redo the resolution and re register. I struggled to, but eventually, get my own SP to do it; it was that or a trip to NCAT where the fraud would be front and centre in the argument. Agent didn’t want to go down the later path as it was his signature on the lodgment with the fake date.
How we register and who with?
Rather funny answer to that question as it does not even address the question.
It is not fairly complex to register by-laws. It is rather easy. You fill in two forms and take them down to your nearest Lands office and slip them the money and you are done.
The secretary in an SP I chair had never done it before, had no idea, but got it done rather easily to her surprise because it is easy.
If you have no agent, as the answer presumes, then knowledge is what you want. Not an invoice from a third party
What to do if no change is made at review.
I will go out on a limb here and say the whole review thing is a consequence of a representation I made in 2014 to the Minister over the way multiple dealings are often necessary to determine a set of by-laws.
The given answer is wrong.
The whole 2014 representation was about the idiocy of multiple dealings being required to be downloaded to find out what the by-laws are. That is more the norm than the exception.
Even though you will find a whole bunch of lawyers tell you there is no requirement if nothing changes at your review, there actually is.
Even if there is no change a consolidated set of by laws are required to be register or the OC fails to comply with s 141 (3).
The Act requires the OC to keep a copy of the consolidated by-laws. So upon review if there is no change then the existing by-laws (which are likely not consolidated because they are the product of a number dealings) get registered as the consolidated by- laws so people no longer need to download a plethora of dealing with individual changes to by-law.
If you do nothing then the strata roll is likely not as it should be because
Generally speaking, who is responsible for the upkeep, repair of the fence that divides common property to exclusive use property ie the boundary between owner’s courtyard and the strip of garden outside it which is common property?