Question: I am an owner occupier in a NSW over 55s strata complex. A lot owner recently passed away. Some of the family have moved in and they are all under 55 years old. Does this breach the building regulations?
Answer: It will depend on how the restriction is recorded.
It will depend on how the restriction is recorded. The restriction on who is permitted to reside in the lot will either be a development consent condition or could be registered as a restriction as to user or positive covenant (often this is a requirement of the DA). There may also be a by-law registered to re-inforce the development consent condition or restriction which could allow the owners corporation to enforce the restriction.
If there is no by-law, Council would be the correct entity to enforce the development consent condition or the restriction as to user. However, you should be aware that Council could issue the owner corporation with a breach of the development consent condition or restriction, even though it is not the owner corporation breaching the condition. I have seen Council do this in the past.
Section 234 of the Strata Schemes Management Act 2015 provides the following:
234 Order enforcing positive covenant
- The Tribunal may, on application by an authority having the benefit of a positive covenant, order an owners corporation for or owner of a lot in a strata scheme to comply with an obligation imposed by the covenant and relating to the maintenance, use, repair or insurance of a building or lot in the scheme, if the Tribunal considers that the owners corporation or owner has failed to comply with the obligation.
- If the authority has been refused an injunction under section 88H of the Conveyancing Act 1919, the Tribunal must not make an order to the same effect as the injunction refused.
This post appears in the February 2024 edition of The NSW Strata Magazine.
Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226
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