NSW: Can a Strata Committee Re-Issue Breach Notices Without Proof?

Question: Our strata committee is sending second breach notices for multiple offences without evidence of non-compliance. Should they be seeking proof of compliance before re-issuing a notice to comply?

Our strata committee is sending second breach notices for multiple offences without evidence of non-compliance.

Chair says we would know if owners are complying as the owner would advise the Strata Manager. But why would the owner communicate with us at all when they are in dispute?

Complaints for by-law breaches are anonymous but it is the Chair who is submitting the complaints, at least, in some instances. The committee agrees to the escalation in breaches on the word of the Chair. The Chair says that it is not the job of the committee to site proof of compliance.

Here are some examples of what’s been happening in our scheme:

• complaints about ‘nuisance’ pets when I am aware the pets haven’t been on property for months
• one dog in breach is 15 yrs old, can barely walk and doesn’t bark.
• breach for laundry on the balcony when the owners have been overseas for the past month

Answer: It is important for you understand the basis upon which the notice of non-compliance was issued.

The process in relation to issuing a notice to comply with by-laws is set out in section 146 of the Strata Schemes Management Act 2015:

1. An owners corporation for a strata scheme may give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.
2. The notice must contain a copy of the specified by-law.
3. A notice must not be given unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation.
4. Subsection (3) does not apply to the giving of a notice by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.

You should start by reviewing the minutes of meetings to see whether any resolutions have been passed to authorise the issue of the specific notice you are concerned about. If there is such a resolution, you will know that the persons at that meeting should have some idea why the notice was issued and you may seek to discuss the matter with them.

If there is no resolution, you may wish to make enquires with the strata manager in relation to the authority to issue the notice to comply.

Section 147 of the Strata Schemes Management Act 2015 provides the Tribunal with the power to issue penalties for non-compliance with by-laws:

1. The Tribunal may, on application by an owners corporation, order a person to pay a monetary penalty of up to 10 penalty units if the Tribunal is satisfied that—
   
   1. the owners corporation gave a notice under this Division to the person requiring the person to comply with a by-law, and
   2. the person has since contravened the by-law.

2. The Tribunal may, on application by an owners corporation, order a person to pay a monetary penalty of up to 20 penalty units if the Tribunal is satisfied that the person has contravened a by-law within 12 months after the Tribunal had imposed a monetary penalty on the person for a previous breach of the by-law.
3. Despite subsections (1) and (2), the Tribunal may, in dealing with a contravention of a by-law made under section 137, impose a monetary penalty of up to 50 penalty units under subsection (1) and a monetary penalty of up to 100 penalty units under subsection (2).
4. An application for an order under subsection (1) must be made not later than 12 months after the notice was given.
5. An owners corporation is not required to give notice under this Division before applying for an order under subsection (2).
6. A monetary penalty is payable to the owners corporation, unless the Tribunal otherwise orders.

A penalty unit is $110.00.

It is important for you understand the basis upon which the notice of non-compliance was issued. For example, even though the dog does not bark this does not necessarily mean it does not create a nuisance. You should review the wording of the by-law carefully. Discussing the notice to comply with the persons at the meeting (who authorised the notice) or the strata manager may assist in clarifying how exactly the non-compliance arises. It would be a good idea to make such enquires to be sure that there is not a misunderstanding.

Before making a penalty order, the Tribunal must be satisfied that the person “has since contravened the by-law”. This means that the owners corporation will need to prove to the Tribunal that, since the issue of the notice to comply, the same person has contravened the same by-law. Anonymous complaints alone, without conclusive evidence, may not be sufficient to prove there has been non-compliance.

If you are confident that there is no evidence of non-compliance (because you comply with the wording of the by-law), you should write to the strata manager and/or the secretary of the owners corporation explaining your position and reserving your rights to rely upon the correspondence should an application be made in the Tribunal. If possible, you should maintain records, photographs, etc. which will assist you in proving your position. If there are witnesses you may ask them to prepare and sign a statement verifying the non-compliance did not occur.

If there is a history of repeated notices being issued without reasonable cause or a proper foundation, or due process, and you consider that certain persons are being improperly targeted or harassed, you may wish to obtain legal advice.

This post appears in Strata News #630.

Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605