Our strata complex, consisting of 85 townhouses and villas built in 1993, is considering introducing a new by-law. Some strata committee members want to grant owners the right to place various items outside the front of their lots, such as air conditioning units, outdoor furniture, and water heat pump outdoor units. However, this proposal raises concerns about altering the overall appearance of our lots. Is it permissible to enact such a by-law?
Answer: A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
Section 136(2) of the Strata Schemes Management Act 2015 (NSW) (‘the Act’) provides that “a by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law”.
For this reason, when making a new by-law, it is important an owners corporation seeks legal advice so as not to create a by-law that becomes unenforceable and useless.
For example, a by-law cannot circumvent the requirements of section 108 of the Act, which requires a special resolution authorising additions, alterations and erection of new structures on common property.
In the case of reverse cycle split system air conditioner, section 110 of the Act (combined with clause 28 of the Strata Schemes Management Regulations 2016 (NSW)) does grant an owner the ability to install the air conditioner, subject to a resolution by the owners corporation or its strata committee. The by-laws cannot circumvent this either.
Furthermore, in the case of the air conditioner, section 110(7)(c) of the Act goes on to state that if the air conditioner changes the external appearance of the lot, it is no longer considered a minor renovation (and therefore becomes a change to common property that must be authorised under section 108 of the Act).
This post appears in the October 2023 edition of The NSW Strata Magazine.
Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960
Does a special resolutions about the use of common property override a conflicting by-law? (NSW)
Hi Jack
The following response has been provided by Leanne Habib, Premium Strata:
Generally, a by-law will override a special resolution (even if both are passed by special resolution) because a by-law operates as a contract that is binding on an owners corporation, owners, occupiers etc.
In relation to parking on common property, it may be possible for common property other than visitor carpark areas to be agreed by owners and used as the Body Corporate see fit.
In Queensland at a recent Brisbane BCCM conciliation meeting, the Body Corporate Committee were instructed that visitor carparks cannot be used by residents even if agreed by Committee or a vote of owners. The Council Development Application at time of construction defines the number of visitor carparks that must be available for “visitors” at all times and they cannot be used by residents at any time. In this case, it leads to idle visitor carparks that residents would love to make use of. The only way to address this is a new Application to Council to review. under current/updated guidelines.
Can the owners corporation in an industrial strata stop owners from parking unregistered cars (being restored) covered by car covers in the owners own car space – on their title?
I have an issue whereby vehicles keep on parking at my car space. I have contacted the Strata Manager that I intend to install a key operated bollard. I’m still waiting for a reply. Is this legal ?
Thank you these articles are good. but.is it possible to relate the issues to all state bylaws such as WA etc so they .can be of definate use to all