Question: Can the committee in our community title development charge owners $150 if they do not attend a clean up day?
My elderly mother in law lives in a house in a community title development. The strata committee recently decided that the 49 lots should have twice annual “clean up” gatherings. If a lot owner does not attend, they have to pay an additional charge of $150. Can the committee impose arbitrary penalties like this?
Answer: The community association or the association committee cannot impose a penalty against an owner who does not attend the twice annual “clean up” gatherings.
No, the community association or the association committee cannot impose a penalty against an owner who does not attend the twice annual “clean up” gatherings. Nor can the community association impose levies on owners other than in accordance with the units of entitlement i.e. impose a levy on one or some owners but not all owners.
Case law and the legislation is very clear that only the Courts or Tribunal can impose penalties.
Community schemes may be tempted to adopt by-laws that seek to recover costs or penalties such as these. However, community schemes cannot recover costs or penalties by way of a by-law.
By-laws cannot impose fees and charges unilaterally in the absence of express authority to do so under the Community Land Management Act 2021, as it would be inconsistent with the provisions of the Act relating to association property maintenance and maintenance of association funds.
A costs recovery by-law may also be ruled invalid if it is harsh, unconscionable or oppressive. The Tribunal has done so on a variety of grounds, including where a by-law displaced the normal processes of the courts, where it did not provide the debtor with procedural fairness, where the by-law reserved assessment of the amount to the scheme without independent assessment, where the by-law lacked inbuilt controls such as whether the amount was reasonable in quantum and reasonably incurred and where the by-law was framed as a debt due, rendering the relevant owner unfinancial and subject to loss of voting and other rights.
This post appears in the December 2024 edition of The NSW Strata Magazine.
Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226
I would begin by saying the reply to the question is average to poor. 2 Stars out of 5.
The by laws typically will only apply to the owners and occupiers, not the owners corporation itself.
As far as fining you goes. There is no power in the Act that allows the OC to do this.
Even if there was a by-law that claimed to give the power to fine it would be dubious and unenforceable to the extent it allowed the OC to fine owners. There are ways for an OC to cover their costs written into some by-laws but if there is no by law at all then they can’t fine you, if there is a by law that says they can fine you it is most likely invalid in that regard.
If your agent is a duche (doosh) then report his/her failure to perform their function to Fair Trading. It is the roll of the Secretary either real or delegated (the agent would have this position delegated to them) to respond to correspondence.
If your not getting an answer then that is failing by the OC to perform a function (2EBR is the best case to cite for that fact).
Don’t expect anything of any real significance from FT over failures of agent and don’t expect anything of significance from NCAT over what would be seen as an isolate and trivial failure by the agent.
Owners see it differently when the agent does not follow the rules but the governing bodies are so soft on non compliance with the Act they deserve a (high) plush rating.
Bottom line is they can’t fine you.
The OC can’t put it on your levy register until a Court or the Tribunal make a judgement it is a debt you owe.
Failure to respond to communication is dysfunction in the OC which has no real remedy due to the plush rating of the rectifying bodies.