This article about the new NSW strata laws and issuing a notice to comply with a by-law has been supplied and written by Allison Benson, Kerin Benson Lawyers. The Q&A on the same subject has been provided by Leanne Habib, Premium Strata.
NSW Strata Reforms: Enforcing By-laws by issuing notices to comply is now more attractive
Previously, if an owners corporation wanted to enforce its by-laws it had two choices. These were:
- To issue a notice to comply and, if the behaviour continued to make an application to NCAT for penalty orders for up to $550; or
- To make an application for Strata Schemes Adjudicator’s orders that a by-law has been breached or the behaviour complained of (for instance piano playing at 2 am) constituted a nuisance and, if the behaviour continued after an Order was made, to make an application for penalty orders of up to $5,500.
Post 30 November 2016, the role of a Strata Schemes Adjudicator is no more and all applications must be made directly to NCAT. This means that now, to enforce a by-law an orders corporation must either:
- issue a notice to comply and, if the behaviour continued to make an application to NCAT for penalty orders; or
- make an application to NCAT for orders that a by-law has been breached or the behaviour complained of (for instance depositing rubbish on the common property) constituted a nuisance and, if the behaviour continued after an order was made, to make an application for penalty orders.
The first option, issuing a notice to comply, is now much, much, more attractive to owners corporations as:
- The maximum penalty has increased from $550 to $1,100 for the first breach; and
- The maximum penalty for a second breach within 12 months of the first order is now $2,200; and
- The penalty is payable to the owners corporation unless the NCAT orders otherwise.
This means that not only is the person breaching the by-laws hit harder in the hip pocket but that the owners corporation would generally receive payment of the penalty. The penalty, if it is unpaid, is to be dealt with in the same way as if a contribution had not been paid.
For more hints and tips on enforcing by-laws see our website or my previous posts. Although the Strata Schemes Management Act 2015 now applies the principles remain the same:
- When your home isn’t necessarily your castle: By-laws & Rules – What are they? Who do they bind? Can they be enforced?
- Enforcing by-laws: Can the owners corporation impose a fine or penalty?
This post appears in Strata News #122.
This article was published with the permission of the author and first appeared on Allison Benson’s blog.
Please note: This is not legal advice. You should seek legal advice particular to your situation.
Question: Can one member of Body Corporate Committee send their own breach of bylaw letter to an owner without contacting other members of the Body Corporate to discuss?
What is the process and procedures for the Body Corporate Committee when contacting an owner regarding a breach of the bylaws? Can one member of Body Corporate Committee send their own letter to a lot owner without contacting other members of the Body Corporate to discuss?
Answer: One member of the NSW Strata Committee has no power to unilaterally issue a notice to comply with a by-law.
One member of the Strata Committee has no power to permit him/her to unilaterally issue such a letter. In the context above, only the NSW Strata Committee by a duly convened meeting / paper resolution could resolve to issue a notice to comply with a by-law.
If you are inquiring about issuance of a Notice to Comply with a by-law, the procedure is clearly set out in Section 146 of the Strata Schemes Management Act, 2015 (NSW) – note subsection (3) which prohibits the issuance of a notice to comply in the absence of an Owners Corporation / Strata Committee resolution.
146 Notice by owners corporation to owner or occupier
Notice to Comply
(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.
Although, if you have a strata managing agent with delegated authority to issue a notice to comply, then your strata managing agent can issue the Notice without any resolution of the strata committee (or Owners Corporation) – see subsection (4) above.
This post appears in Strata News #140.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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Are you interested in more information about notice to comply with a by-law NSW relating to the Reforms or information particular to NSW strata legislation? Visit our Strata Law Reform, Strata Committee Concerns OR NSW Strata Legislation pages.
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