NSW: Q&A Which ByLaws Apply to Our Strata Scheme?

Lot owners are wondering about the NSW bylaws and the bylaw review. Which bylaws apply to your owners corporation? Where can you find your bylaws in NSW?

Table of Contents:

• QUESTION: I believe one of our bylaw is harsh, unconscionable or unreasonable. As a lot owner, should I apply to NCAT for the Tribunal to decide or should concerns first be raised to the Strata Committee or at a General Meeting?
• QUESTION: Our older building’s supposedly consolidated by-laws are inconsistent and contain old terminology. Are the outdated by-laws invalid?
• ARTICLE: What’s Happening With the NSW ByLaws Process from the 11 October 2021?
• QUESTION: If a Strata Management Company changes their name, should they also change the business name they register our by-laws under?
• QUESTION: What are the requirements for owning and or residing in an over 55s strata property? Does the owner or all residents need to be over 55 to live in a retirement village?
• QUESTION: Can an existing Special ByLaw be amended without the legal cost of being re-written by a strata lawyer?
• 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: How do we find the bylaws for our strata plan? We only have a copy of our strata title bylaw changes from 2012. We can only rely on information from a former committee member.
• 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: I believe one of our bylaw is harsh, unconscionable or unreasonable. As a lot owner, should I apply to NCAT for the Tribunal to decide or should concerns first be raised to the Strata Committee or at a General Meeting?

Answer: The procedure is to make an application for an Order declaring the by-law invalid.

There is nothing to stop the owner from raising their concerns with the strata committee or at a general meeting, however, as you correctly state, the procedure is to make an application under Section 150 of the Strata Schemes Management Act 2015 (NSW)(the “Act”) for an Order declaring the by-law to be invalid (as NCAT has that jurisdiction) and compliance with the mediation requirements under the Act first.

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

This post appears in Strata News #583.

Question: Our older building’s supposedly consolidated by-laws are inconsistent and contain old terminology. Are the outdated by-laws invalid?

I have three issues concerning By-Law consolidation.

1. I am concerned that our By-laws have not been consolidated in a logical way to make an accessible document; and
2. that the term ‘Council’ appears everywhere though out the document – through old and new By-Laws – where it means to refer to ‘strata committee.’ And
3. that all our Special By-Laws to cover various apartment renovations are not attached to their associated Annexures. The Annexures have all been lumped together at the back.

My building is 26 years old. Our current, supposedly consolidated By-Laws have been brought up to date with the 2015 changes – i.e. By-Laws 12-29 inclusive have been repealed by Special By-Law 1 and the new 12-29 substituted. The old ones haven’t been actually taken out – they are there along with the new ones. The old ones have topic headings but the new ones don’t. Consequently, you need to go back and forth from the repealed to the new ones. The term ‘the Council’ represents the legally defined term ‘strata committee’ throughout the entire document. Is this legally correct or are all these By-Laws where the term ‘the Council’ is inserted invalid?

Answer: You should not have old, repealed by-laws showing in your consolidated by-laws.

What you have described regarding old/incorrect/inconsistent terminology is not uncommon, especially for older strata buildings that have changed their by-laws numerous times over the years. What invariably happens is different parties draft by-laws over time, and they end up being inconsistent and sometimes incomplete.

We would need to look at your current consolidated by-laws, however it sounds like they were not consolidated properly. You should not have old, repealed by-laws showing in your consolidated by-laws for example. Ideally your by-laws should use the current terminology in the Act. We would recommend you engage a law firm to tidy all this up for you (including by removing any by-laws which have been validly repealed) and register a clean, consolidated set of by-laws that has the correct terminology, clause numbers, headings and any annexures laid out correctly.

David Budgen
By-Law Builder | Bugden Allen Graham Lawyers
E: [email protected]
P: 02 9199 1055

This post appears in the December 2021 edition of The NSW Strata Magazine.

What’s Happening With the NSW ByLaws Process from the 11 October 2021?

This video discusses changes to electronic land dealings coming into effect on 11 October 2021 and what these changes mean for consolidating and registering bylaws in NSW. What’s happening and what does it mean for you?

From 11 October 2021 in NSW, apart from a very small number of exceptions, every land dealing in NSW will be electronic.

The key changes affecting NSW owners corporations

1. Certificates of Title will be no longer be considered a legal document so owners of a CT can:
   
   • Do nothing
   • Destroy it
   • Frame it
2. All land dealings lodged at NSW Land Registry Services must come through a “Subscriber”. A “Subscriber” is a law firm or licenced conveyancer.
3. Paper dealings will no longer be accepted for lodgement – no more over the counter lodgements.
4. The video focuses on one of the most common dealings for strata “Change of by-laws”.

David steps you through the new process for submitting Change of ByLaws in NSW, whether you are a strata manager, committee with a strata manager or dealing with these changes as a self managed strata scheme.

Finally: Your by-law is NOT valid or enforceable until it is registered!

Bugden Allen Graham Lawyers has a solution to help you streamline this process. You can take a look at the ByLaw Builder platform here.

The Bugden Allen Graham Lawyers presentation referred to in the video can be downloaded here: Electronic land dealings in NSW from 11 October 2021 – a focus on CT’s and by-laws

David Budgen
Bugden Allen Graham Lawyers
E: [email protected]
P: 02 9199 1055

This post appears in Strata News #517.

Question: If a Strata Management Company changes their name, should they also change the business name they register our by-laws under?

On review of our Schemes current By-Laws, I noticed the Strata Manager had changed their Business Name back in 2015. However, they did not change the business name they register our by-laws under.

Can you please advise if this was to be the responsibility of the Strata Manager Business to action? (At the time of business change).

And if so, can the Committee apply for a fee compensation from the Strata Manager, to now have the name changed in the By-Law?

Answer: Now that the by-law is registered, nothing turns on which legal entity or business name did so.

Now that the by-law is registered, nothing turns on which legal entity or business name did so.

It is the strata’s responsibility to change and register its business name, but that does impact on the owners corporation’s registered by-laws.

As the Owners Corporation has suffered no damage, unfortunately, there would be no compensation to be sought.

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

This post appears in Strata News #504.

Question: What are the requirements for owning and or residing in an over 55s strata property? Does the owner or all residents need to be over 55 to live in a retirement village?

Our Strata is an over 55s or invalid property. Can a purchaser be stopped from buying a lot in a retirement village if they are unable to prove they are 55+ years old and/or permanently invalid?

Finally, what constitutes invalid under the Strata legislation?

Answer: It’s not the purchaser who needs to be over 55, it’s actually the resident.

It’s not the purchaser who needs to be over 55, it’s actually the resident. So I could actually purchase a property and have my mother who’s over 55 reside in the property. The deciding factor is on the resident as opposed to the purchaser. So the purchase can be any age, it’s just the resident that presides.

If you’re a resident and you’re 55 and you have a relative such as a dependent child, an aunt, a stepfather, etc, living with you and they are under 55, they can also occupy the property with you. The main resident needs to comply and be over 55.

What determines whether you have the disability etc, to actually reside? It would come down to medical reasons. The retirement village act would have more information about that.

For me, in short, it would be having some medical certificate to confirm that you do have a disability or a condition to ensure that you do warrant what they define as acceptable for that scheme.

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

This post appears in Strata News #496.

Question: Can an existing Special ByLaw be amended without the legal cost of being re-written by a strata lawyer?

Can an existing Special ByLaw be amended without the legal cost of being re-written by a strata lawyer.

This bylaw outlines permission and the terms and conditions for owners to install ducted split air conditioning systems, roof ventilation, satellite dishes, security screens and pergola roofs. We would like this to be amended to also include Solar Panels.

Answer: If a bylaw is not worded correctly, or it’s not enforceable, then it’s like having no bylaw.

Anything is possible, there’s nothing to say that you need to get a lawyer to draft the bylaw. However, my very strong recommendation is that you engage a strata lawyer. I’m a big believer that these bylaws might appear to be straightforward, but they are worded in a way that lawyers are qualified to word.

Every bylaw has set out terms and conditions and definitions, and I will always define what works mean. It will mean, e.g. satellite, solar panel, etc. It might appear to be as simple as just amending that definition to include the solar panel work, but it could be other parts in that bylaw, that all connect that also need to be amended.

My strong recommendation is to have a lawyer amend the bylaw as required. Don’t try to copy bylaws for other works, and don’t try to amend bylaws.

The short answer is there’s no legal requirement where you must have a lawyer to draft the bylaw but it is highly highly recommended to have a lawyer draft the bylaw because the whole purpose of the bylaw is for you to rely on it as an Owners Corporation. If a bylaw is not worded correctly, or it’s not enforceable, then it’s like having no bylaw. You want to be in a position where you can enforce the bylaw if needed. That’s the whole purpose of having one.

ByLaw Review – Checking for harsh, unreasonable or unfair bylaws

This process gives you an opportunity to see if there were any other issues with the original bylaw. It’s a good opportunity now to amend it, especially because NSW Strata Legislation had changes back in 2015 addressing where bylaws can be harsh and unfair. The bylaw might be harsh and unfair, so it’s a good opportunity to have that reviewed.

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

This post appears in Strata News #494.

Question: Can a majority Executive Committee vote to decide to maintain and comply with their pre-existing 2015 Strata By-laws?

1. 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?
2. 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.

1. Yes. All strata schemes, regardless of when they were registered, must comply with the current legislation, being the Strata Schemes Management Act 2015.
2. 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 our 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

1. An owners corporation may, in accordance with a special resolution of the owners corporation, change the by-laws of the strata scheme.
2. A change to the by-laws of a strata scheme has no effect until–
   
   1. the owners corporation has lodged a notification with the Registrar-General in the manner approved by the Registrar-General, and
   2. the Registrar-General has made an appropriate recording of the notification in the folio of the Register for the common property.
3. The secretary of the owners corporation must keep a consolidated up to date copy of the by-laws for the strata scheme.
4. 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 are 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 aspects 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: How do we find the bylaws for our strata plan? We only have a copy of our strata title bylaw changes from 2012. We can only rely on information from a former committee member.

I have a copy of our strata title bylaw changes from 2012. Our Strata Plan is from 1997 but the bylaws that affect us cannot be found. We can only rely on information from a former committee member.

How do we find the bylaws for our strata plan?

Answer: You should always be able to find a copy of the registered by-laws for your scheme.

You should always be able to find a copy of the registered by-laws for your scheme.

If a consolidated set of your scheme’s by-laws have not yet been registered then the certificate of title for the common property will list all the registered changes of by-laws and which of the model by-laws or developer by-laws apply to your scheme. You then need to go through all the registered dealings to see what changes have occurred and to obtain a copy of the model by-laws that apply.

If a consolidated set of by-laws has been registered, tracking down the changes is much trickier as the previous dealings changing the by-laws will no longer be registered by dealing number on the common property title. It is not impossible but it does take a bit of investigating to see what the dealings were previously, you can do this by looking at your original contract for sale of land as all the previously registered dealings will be included, then you could search through the minutes of each general meeting to look for any changes that occurred after you bought your property.

For completeness, I would also search the files to see if the strata manager had any copies of the previously registered dealings as sometimes by-laws were passed but not registered.

Allison Benson
Kerin Benson Lawyers
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 #344.

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.

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