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