NSW: Q&A Do We Need a ByLaw For That?

The LookUpStrata Team

5 years ago

These Q&As are about whether you need a bylaw for things like parking rules or installing a light on common property in NSW.

Table of Contents:

QUESTION: Can we pass a by-law allowing owners to place items like air conditioning units and water heat pumps outside their lots?

QUESTION: In our duplex, can we create a bylaw that moves all responsibility for maintenance of the lot from the owners corporation to the lot owner?

QUESTION: Does the strata Committee have the legal right to sell framed art pieces in common areas without all lot owner’s permission?

QUESTION: Our strata committee wants to introduce a bylaw stating everyone needs to maintain their own building including the facade, roof and balcony. Is this a common practice for townhouses?

QUESTION: Do we need a By-Law to install Common Property lighting?

QUESTION: We agreed years ago to park cars on common property. A new resident has complained and now our strata manager says we cannot do this. Why change when it’s been working well for years?

Question: Can we pass a by-law allowing owners to place items like air conditioning units and water heat pumps outside their lots?

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).

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in the October 2023 edition of The NSW Strata Magazine.

Question: In our duplex, can we create a bylaw that moves all responsibility for maintenance of the lot from the owners corporation to the lot owner?

We own a lot in a two lot scheme. Can we create a bylaw stating each lot owner has exclusive use over the common property around their lot? This would move all responsibility for the maintenance of the lot from the owners corporation to the lot owner.

Essentially, we’d like to remove common property for everything on the property other than the shared driveway.

We have been searching for a way to go ahead. The other owner doesn’t believe it’s possible.

Answer: Each owner must consent to the by-law.

Yes, this can be done, but each owner must consent to the by-law. The by-law can, for example, specify certain parts to remain as costs shared, such as a shared driveway or a common dividing wall. The by-law can go through the various parts (walls, floors, ceilings, roof, windows, gardens etc) one by one.

The alternative is to change the actual strata plan so the common property walls around each lot are shown with a dotted line, with the solid black line around the outer boundary, more like a deposited plan (for houses). This would mean the external walls of each lot (presumably duplexes) are no longer common property. The by-law option is substantially cheaper ($2,000 vs $10,000-$15,000).

James Moir Madison Marcus E: Strata@madisonmarcus.com.au P: 02 8022 1222

This post appears in the March 2023 edition of The NSW Strata Magazine.

Question: Does the strata Committee have the legal right to sell framed art pieces in common areas without all lot owner’s permission?

Answer: Yes, a general meeting of the Owners Corporation would be required and there are likely local council consent and insurance implications.

We consider that, at minimum, the Owners Corporation would need to pass a special resolution or by-law empowering itself to “add” items to the common property and carry on the commercial enterprise you refer to. So yes, a general meeting of the Owners Corporation would be required and there are likely local council consent and insurance implications.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #435.

Question: Our strata committee wants to introduce a bylaw stating everyone needs to maintain their own building including the facade, roof and balcony. Is this a common practice for townhouses?

We live in a group of 5 townhouses. Our strata committee wants to introduce a bylaw stating everyone needs to maintain their own parts of the building including the facade, roof and balcony.

Their intent is to save money by not having to pay for a strata manager.

Does this mean I need to take out additional insurance for areas that were the responsibility of the owners corporation? Is this a common situation? What are the advantages and disadvantages if this bylaw is introduced?

Answer: This is not an uncommon practice for townhouses that are physically detached from one another.

This is not an uncommon practice for townhouses that are physically detached from one another. It is recommended that you obtain building and other insurance if you proceed with this course but before you do also review your strata plan as surveyors often make notations on a strata plan providing that certain structures/elements are the responsibility of the individual owners (thereby displacing the usual categorisation of common property).

One advantage is that you do not need to wait for the Owners Corporation to effect repairs and maintenance as and when required and you can do so yourself. On the downside, the risk is that you might jeopardise the uniformity of the appearance of the building, the consistency and quality of materials used and aesthetics (eg colour, look and feel) of the townhouses and that one or more townhouses allow their property to fall into a state of disrepair thereby potentially affecting the value of the other townhouses.

You will need to engage an expert strata lawyer to address all such risks and we recommend that the Owners Corporation be given the power to compel individual owners to carry out requisite repairs & maintenance if they do not do so in a timely manner.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the June 2022 edition of The NSW Strata Magazine.

Question: Do we need a By-Law to install Common Property lighting?

I live in a 5 villa complex all on ground level with no common power.

The common driveway is very dark and our Strata Committee has agreed to place a sensor light off the roof of one villa. The owner of this villa is happy for his power to be used and is not seeking any compensation. The cost of installation is coming out of Strata funds.

Do we need a ByLaw for this?

Answer: To add improvements to common property requires a special resolution of the owners corporation.

To add improvements to common property requires a special resolution of the owners corporation.

The owners corporation could enter into a deed to bind an owner to give power to it. But this would not bind a subsequent owner.

David Bannerman Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #435.

Question: We agreed years ago to park cars on common property. A new resident has complained and now our strata manager says we cannot do this. Why change when it’s been working well for years?

We are a small, self managed strata block in NSW. Years ago we made an agreement we could all park on common property.

A new resident has moved in and taken us to NCAT. We got appointed a strata company who have now said we can’t park in our allocated spots on common property even though we have all agreed it’s ok.

We are on a really busy street with no parking. What happens now? Do I have to abide by these parking rules even though we have all agreed and the system has been working fine for years?

Answer: If there is a parking by-law, this cannot be easily disputed by the new owner who has moved downstairs.

If there has been a new by-law or changes to an existing by-law that allows lot owners of the strata to park in the common area, then this cannot be easily disputed by the new owner who has moved downstairs. Even if they dispute it and make a claim at NSW Civil & Administrative Tribunal, the Tribunal would have to be satisfied that the parking by-law is invalid for reasons that it is harsh, unconscionable or oppressive.

However if a by-law does not exist to allow parking in the common area then now is the opportunity to convene a meeting with all owners with an aim to modify or adopt new by-laws that are in the interest of the owners. This requires a special majority vote and if you and all other owners have already agreed to this then it will not be difficult for you to obtain their support. If there has been a motion already passed by a special majority of the owners, then you should not be compelled to stop parking in the common area.

A by-law, once passed, must be registered so as to be enforceable.

Yuhao Gu Omega Legal E: info@omegalegal.com.au P: 0402 990 108

This post appears in Strata News #344.

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