NSW: Tips & Traps in Enforcing By-laws

Hi everyone, it’s Allison Benson from Thoughts from A Strata Lawyer.

I’m coming back to a perennial subject here, and it’s by law enforcement. Why? Because it’s come up so many times in the last couple of weeks for me.

Today it is just a couple of tips and trips, basically, for young players in the market.

First, review your by-laws.

Does the by-law that you are seeking to enforce actually cover the behaviour that’s being complained of? So, for instance, a by-law that says that you cannot park or stand, a motor vehicle on, the common property, seems fairly benign, without the prior written approval, is the general by-law. But what happens if somebody actually has got the prior approval? Or what happens if it is not a motor or other vehicle? And when you go to have a look at that, there are actually definitions under the NSW Road Rules of what a motor vehicle is. So say, for instance, somebody parked a horse on the common property. Well, that’s not going to be a vehicle. And I know it’s an absurd example, but I’ve seen other examples of, you know, hanging out laundry over balconies. Well, the person wasn’t actually hanging out laundry. They’d put a tarp over the balcony. Again we could get them for something else under another by-law, which would be the in keeping (appearances) by-law. But we couldn’t breach them on the basis of the no hanging out of laundry by-law.

You need to actually match your behaviour to the by-law that you’re seeking to enforce it.

The second thing I think you need to do is just double check that your by-laws are compliant with current case law and with current legislation. And it has been a bit of a moving feast. We have had a lot of changes to our strata legislation, and we’ve had a lot of movement with cost recovery by-laws in particular, and what’s harsh, unconscionable, and oppressive. Just a quickly, and I’ve done a lot of blogs on this: Generally absolute prohibitions are out. The Tribunal doesn’t particularly like cost recovery vitals, but there are exceptions to that. So you just have to tread with care if you’re seeking to enforce those particular by-laws.

Now, how do you choose to enforce it?

Notice to Comply

Well, you can issue a notice to comply. Who does that? Well, the Strata Community, or the Owners Corporation if there’s no strata committee, should hold a meeting, they should resolve that there’s a breach of the by-law and they should resolve to issue a notice to comply and to instruct the strata managing agent to do so.

But the key step is, resolved= that there’s been a breach. Make sure there actually is evidence of a breach. And then resolve to issue the notice to comply.

Once the notice to comply is issued, the strata manager will sign an affidavit of service, and then if the behaviour occurs again, you’ve got the ability to go to NCAT to seek a penalty order.

Mediation then application for orders

Now, you could also follow another path. You could go to the mediation process saying that this person has breached the by-law. Then if that mediation process isn’t successful, the owners corporation could resolve to go to NCAT for an order to stop the particular behaviour happening again. And so that’s a different process.

Nuisance

If the behaviour is a nuisance, then there are provisions under the Strata Schemes Management Act to prevent nuisance.

A lot owner or occupant must not cause a nuisance in the use of their use of the common property and so you can enforce the by-law that way as well.

But the key thing is, you will have to make sure that you’ve actually got the resolution in place relating to the enforcement process.

For the cause of action under nuisance, if it fits the behaviour that you want to prevent you also need to authorise the enforcement process.

Now, for a notice that comply, one breach, one notice to comply issued. You can then go to NCAT, and you (the owners corporation) can get an order for penalty application up to $1100 in the case of an individual, if the behaviour is repeated after the conduct that has been found to be in breach of the by-law (and within 12 months of this decision). Then you can double that penalty application.

Otherwise, you’re going straight to NCAT after mediation, and you’re seeking orders that the person not conduct that behaviour in the future. And then if that order is breached, then you can s go to NCAT to say, the order has been breached, we’re seeking an order for penalty, for breach for of NCAT orders.

There is a couple of different paths that you can take. But make sure you’ve got proper authorisation.

It is a technical process if you are going to serve a notice to comply, or if you’re seeking to enforce an NCAT order, then just be aware that the rules of evidence do apply, so they can be quite technical. Get legal advice is my opinion and and my strong recommendation to you, because every situation is slightly different.

Now, as most people that have been looking at my blog over the years, know, in NCAT, costs are generally payable by each party, meaning that costs aren’t generally awarded unless there’s special circumstances. So you want to, if you’re going to enforce a by-law, you want to set yourselves up to be able to in the best possible position to claim your costs. Again, there’s ways and means of doing this. So just, um, have a little bit of a thought process before you start this. Review, your by-laws, review the conduct, do they match? Authorise the process properly, so pass resolutions to do so. Make sure the notice comply is properly issued. Make sure its sent to the correct address and it attaches the by-law that’s said to be in breach and it addresses behaviour. Fill in the sections on the form (it is a required form). Then, if the behaviour has occurred again, pass another resolution to go to the to NCAT for an order for penalty orders, if you’re going to go down the notice to comply path.

Hope that helps. It is something something that often trips up schemes and I’d hate to see schemes fail at the last minute.

This is general advice and should not be taken as legal advice. Please see advice tailored to your situation.

Allison Benson
Benson Legal
E: allison@bensonlegal.com.au

This post appears in Strata News #798.