NSW: Q&A Issuing a Breach / Notices to Comply with a By Law

Our strata committee has adopted a “code of conduct” and seeks to issue breach notices if residents break the code. Some rules seem unreasonable, referring to whether owners can communicate with other owners, talk to contractors, email committee members, etc. As the strata act is silent on a code of conduct and the chair makes up this one, is this legal? It seems to be nothing more than to enhance the committee’s control.

Answer: Any by-law preventing emailing other owners, talking to contractors or emailing committee members would be contrary to the legislation, invalid and unenforceable.

Whilst a code of conduct can be helpful, they usually contain general provisions, such as the strata committee is to be respectful, act in good faith, avoid conflicts, etc.

The code of conduct would have to be registered as a by-law and recorded on the certificate of title for the common property to be enforceable and to enable the owners corporation to serve breach notices. By breach notices, I assume that you are referring to notices to comply under section 146 of the Strata Schemes Management Act 2015.

If the breach notices are not notices to comply in accordance with section 146, the strata committee is not able to recover a penalty or fine for a breach of the code of conduct. The strata committee can only obtain a penalty by following the process set out Strata Schemes Management Act 2015, i.e. serve a notice to comply and if a further breach, make an application to the NSW Civil and Administrative Tribunal (NCAT) for a penalty.

Regarding the specifics of the code of conduct, any by-law preventing emailing other owners, talking to contractors or emailing committee members would be contrary to the legislation, invalid and unenforceable.

Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in the March 2024 edition of The NSW Strata Magazine.

Question: One lot owner in our small, well run building refuses to maintain their garden. Can strata force an owner to maintain their private lot? If yes, how?

I live in a self-managed strata complex of 6 townhouses. We are all owner-occupied. We generally all get along well except one of our owners does not maintain their front garden or backyard. Even though it is own private property and not common property, it is overgrown and the neighbours are complaining. The owner has been asked to maintain the yard many times, but they never do.

Can strata force an owner to maintain their private lot? If yes, what is the best way to approach the situation?

Answer: We have outlined below a step by step process to get the owner to comply.

Our office process is:

First letter from the strata manager to the owner as an ‘education letter’. This is to let them know they are in breach of the by-laws (see below)

If this doesn’t improve, we issue a final notice. This is a stern warning advising that if things don’t improve we are heading to Fair Trading for Mediation.

If this still doesn’t resolve, normally the strata committee would vote on whether or not to live with the issue or proceed to Fair Trading for mediation. Mediation resolves the majority of complaints and there are no costs to lodge anymore. This is a good third step.

Assuming that your strata is subject to the model by-laws, this is the by-law they are in breach of:

17 APPEARANCE OF LOT

The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.

Rod Smith The Strata Collective E: rsmith@thestratacollective.com.au P: 02 9879 3547

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

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:

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.

The notice must contain a copy of the specified by-law.

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.

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:

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.

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.

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).

An application for an order under subsection (1) must be made not later than 12 months after the notice was given.

An owners corporation is not required to give notice under this Division before applying for an order under subsection (2).

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.

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

This post appears in Strata News #630.

Question: I recently received a letter accusing me of breaching a bylaw. The breach was for parking in the visitors car park. The notice included photographs of the offending cars, but they do not belong to me. I feel most outraged. What are my rights?

Answer: You should raise this immediately with your strata manager/strata committee in writing

If you consider you have been wrongly maligned, you should raise this immediately with your strata manager/strata committee in writing. It is unlikely they will pursue you if you can demonstrate that you do not own the offending vehicle(s) and you should insist that a letter/email be issued to you confirming their error (to counterbalance the first letter, though your own letter should suffice).

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

This post appears in Strata News #598.

Question: A lot owner stores items on common property outside their front door. I’ve requested they be served with a breach but the strata manager is reluctant to do this.

A lot owner in our building stores personal items on the landing outside their unit. The items include a large box, a mat and multiple pairs of shoes.

I have advised strata about this on multiple occasions. I recently requested a breach notice be issued to the owner for breaching the common property by-law.

The Strata manager does not have the owner’s contact details and is unwilling to send a letter unless all Committee members approve. There are only 2 Committee members, myself and an owner who is a friend of the owner who is breaching strata laws. What can I do?

Answer: Request the motion be included on the next General Meeting of the Owners Corporation so a decision can be made by all owners present.

Items should not be stored on common property without approval of the Owners Corporation. As you mention, this is very likely a breach of the by-laws for your strata scheme. The difficulty is that often a strata manager will require that a majority of the Committee support action in regards to breach processes as although they likely have delegated authority to take this action, the next step in the breach of by-law process will require that a formal Committee meeting be held to issue a Notice to Comply. If there is not a majority of the Committee approving this course of action you cannot follow that route.

The options you have available are requesting that the motion be included on the next General Meeting of the Owners Corporation so a decision can be made by all owners present.

I would also have to suggest that this is potentially a risk in regards to the fire requirements which require that there is a clear path of egress.

Robert Fothergill Strata Life E: Robert@thestratalife.com.au P: 02 9456 9917

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

Question: If committee members are breaching visitor parking rules, do their votes count when we vote on enforcing this bylaw?

We have two visitor parking spots in a block of eight. Two different members of the owner’s committee park their car in these spaces on a permanent basis even though they have their own garage.

Other resident’s visitors and tradesmen have to park on the street because of this. There is nothing in the by-laws approving their parking.

Do their votes count on issues as owner committee members when we vote because realistically, they are disobeying the committee’s visitors car park ruling?

Answer: If a motion dealing with such a breach is on the agenda of a strata committee meeting, then those members may not be able to participate in the discussion of the motion or vote on it.

Strata committee members should not be parking in visitor parking spaces because doing so is likely a breach of by-laws. If a motion dealing with such a breach is on the agenda of a strata committee meeting, then those members may not be able to participate in the discussion of the motion or vote on it.

I will assume that the visitor parking spots are common property and you have a by-law to the effect that owners and residents must not use them without permission and that they are meant to be used by visitors on a non-permanent basis. This is because the current model by-laws 1 and 4 in schedule 3 of the Strata Schemes Management Regulation 2016 provide as follows and most strata schemes have by-laws that are a version of them:

Vehicles An owner or occupier of a lot must not park or stand any motor or other vehicle on common property, or permit a motor vehicle to be parked or stood on common property, except with the prior written approval of the owners corporation or as permitted by a sign authorised by the owners corporation.

Obstruction of common property An owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis.

There is no provision in the Strata Schemes Management Act 2015 (SSMA) that allows an owners corporation or strata committee to excuse someone from compliance with by-laws. However, on the other hand, there is nothing in the SSMA that compels an owners corporation or strata committee to enforce its by-laws.

If there is a motion on the agenda of a strata committee meeting to deal with a breach of a by-law by a strata committee member, then clause 18 of Schedule 2 of the SSMA may apply to prevent them from participating in the discussion of the motion or voting on it. Clause 18 provides to the effect that if a strata committee member has a direct or indirect pecuniary interest in a motion and that interest appears to raise a conflict with the proper performance of the member’s duties, then that member cannot be present when the motion is discussed or vote on it, unless the other committee members permit them to do so. Under section 37 of the SSMA, strata committee members must carry out their functions for the benefit of the owners corporation and with due care and diligence. This would extend to making decisions that benefit all owners such as making sure the character of visitor parking spaces as being parking for visitors of all owners and the owners corporation is maintained. A vote by a strata committee member to the effect of preventing the owners corporation enforcing its by-laws may be seen as conflicting with this duty under section 37 and thus engaging the procedure in clause 18.

A motion about whether to issue a notice to comply with a by-law or take legal action about a breach of a by-law may mean that there is a pecuniary interest being considered because if the motion is passed, then the strata committee member is potentially exposed to a fine and incurring legal costs.

If, on the other hand, the issue of a by-law breach is a motion on the agenda of a general meeting, clause 18 and section 37 do not apply because when a strata committee attends and votes at a general meeting, they do so in the capacity of being a lot owner and not in their capacity as a member of the strata committee.

Carlo Fini Lawyer (NSW)

This post appears in the July 2021 edition of The NSW Strata Magazine.

Question: Should legal representation be obtained by an Owners Corporation before applying to NCAT for a hearing for failure to comply with by-laws?

Should legal representation be obtained by an Owners Corporation before applying to NCAT for a hearing for failure to comply with by-laws?

At an NCAT hearing regarding continued failure to comply with by-laws, and after serving a NSW Fair Trading Notice to Comply, is it usual for the applicant’s (Owners Corporation) legal costs to be awarded against the offender along with the $1100 fine?

Answer: I would always recommend having legal representation, especially when it comes to enforcing bylaws

To answer the first question, ‘is it suggested to have legal representation’; in NCAT you have to actually seek leave to have legal representation. So it’s not automatic, you have to actually get approval from the tribunal member to have representation.

If representation is approved, generally, the NCAT is a jurisdiction where there’s no cost but you can obtain costs on rare occasions and circumstances but generally speaking, there is no cost, you can’t seek your cost.

I would always recommend, however, having legal representation especially when it comes to enforcing bylaws because sometimes it can be straight forward that they’ve breached that bylaw, but there can be a technicality. Or sometimes how the bylaw has been worded doesn’t actually assist the case, either. So my strong advice to a lot of our clients is to seek legal advice on the bylaw and ensure that it’s worded in a format that can be enforced to the intent. Having that legal advice initially will ensure that if you do take action against that lot owner for breach of that bylaw, that you’re going to have a stronger position in enforcing it and winning in NCAT.

I always generally encourage having legal representation, but you do need to get leave from tribunal and it’s not always guaranteed that you would get costs. In most cases, it’s unlikely that you would get cost, you have to prove that the application was lacking in substance and etc, for you to actually obtain any cost order.

Generally, if you’ve got two parties; lets say you’re the applicant and the defendant doesn’t want to have legal representation, it’s very unlikely that a tribunal member would award cost in your favour against that defendant because they didn’t have any legal representation. Especially if you were the applicant that was pushing to have legal representation.

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

This post appears in Strata News #486.

Question: Should there be a provision for tougher penalties for residents who do not comply with bylaws for responsible animal ownership?

Answer: Yes, there should be tougher penalties imposed on people who breach the bylaws dealing with keeping of pets

I think there should. That’s a very topical question because at the moment NCAT only has the power to impose a $1,100 penalty on a pet owner who contravenes a notice to comply with the bylaw. There are many pet owners that would be prepared to pay that price to keep their beloved dog or cat in their apartment with them.

What the new laws the New South Wales Government has just passed will say when they become law later this year, is that NCAT will have power to impose a $5500 penalty on any person who breaches an NCAT order. That means that if an Owners Corporation takes a dog owner to NCAT and gets an order for the dog to be removed from the building because the dog is causing a nuisance and the owner doesn’t comply with that order, the owners corporation can go back to NCAT and have that dog owner penalised up to $5500.

I think we all have to ask ourselves the question: what price are some people prepared to pay to keep their beloved dog or cat in their apartment with them? I dare say that there are lots of people that will be prepared to pay a penalty of that magnitude.

I suspect the answer to the question is yes, there should be tougher penalties imposed on people who breach the bylaws dealing with keeping of pets to provide them with a sufficient incentive to comply with those bylaws and orders that are made by NCAT.

Adrian Mueller Partner + Senior Lawyer JS Mueller & Co Lawyers E: adrianmueller@muellers.com.au P: 02 9562 1266

This post appears in the April 2021 edition of The NSW Strata Magazine.

Question: The strata committee has issued me with a notice for breach of the noise by-law based on hearsay of a neighbour about noise disturbance.

I have been served with a Notice to comply with a Noise bylaw.

The strata committee has issue a notice for breach of the noise by-law based on hearsay of a neighbour about noise disturbance. We feel we have been unfairly treated as they have not provided us with an opportunity to respond.

The notice has been issued via electronic instruction to the strata manager without passing a resolution in a meeting or ‘in writing’ meeting. Is this the correct procedure?

Should I call for a meeting to resolve the matter or is there a better option?

Answer: Speak to your strata manager to find out the details of the noise report and review whether you were noisy on that day.

It is often disappointing to receive such a notice. Can I suggest that you speak to your strata manager to find out the details of the noise report and review whether you were noisy on that day.

Our natural reaction in such instances is to defend ourselves however a simply apology and a rectification of the problem into the future may assist defuse any conflict with your neighbours.

If the complaint is unfair or didn’t occur, then you can review your options. I would suggest a simple letter to strata stating your side of things may be the right way to approach this situation.

Calling a meeting is an option however you are most likely to be inflaming the situation rather than resolving it.

Rod Smith The Strata Collective E: rsmith@thestratacollective.com.au P: 02 9879 3547

This post appears in Strata News #458.

Question: What are Penalty Units in NSW strata? Can we use penalty units to make an uncooperative lot owner comply?

What are the Penalty Units referred to in the STRATA SCHEMES MANAGEMENT ACT 2015? Could you please explain? They are referred to in SECT 258 if an owner does not comply with supplying the Owners Corporation details of their leased unit.

Penalty Units are not explained anywhere within the Strata Scheme act, and when we called NSW Fair Trade, they could not provide any more information.

Due to a confrontational unit owner not complying with this part of the Strata Scheme Act, we need to explore this potential Penalty Unit mechanism. Can we use these to make an uncooperative lot owner comply?

So we can resolve this issue, any information on Penalty Units would be very appreciated.

Answer: In NSW, the term ‘penalty units’ refers to the monetary amount for a fine obtained by multiplying $110.00 by that number of penalty units.

The term ‘penalty units’ refers to the monetary amount for a fine obtained by multiplying $110.00 (or the amount prescribed by the relevant legislation), by that number of penalty units.

In New South Wales, ‘penalty units’ refers to the monetary value for a fine obtained by multiplying $110.00, by that number of penalty units. The monetary value for a penalty unit relating to NSW offences is prescribed by section 17 of the Crimes (Sentencing Procedure) Act 1999.

Using the example of s 258 of the Strata Schemes Management Act 2015, a single breach under this section results in a maximum of 5 penalty units, which equates to $550.00. However, the owners corporation does not have the power to issue a penalty notice (or a fine), if someone is found to be in breach of this section.

The owners corporation may apply to NSW Civil and Administrative Tribunal to seek an order for the offending person to pay up to the maximum penalty of 5 penalty units (ie. $550.00) in this scenario.

Another consideration is to resolve any minor disputes using internal dispute handing processes that can be set up by the owners corporation.

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

This post appears in the February 2021 edition of The NSW Strata Magazine.

Question: A lot owner with a dog causes nuisance to surrounding lots. What can the owners corporation do? Is there a legal way to handle this?

We have a problem with a lot owner who owns a dog on our building.

The dog is left for long periods unattended causing excessive barking,

excrement is left on common property,

urine overflows off the balcony to the unit below and

the dog’s running through the unit causes noise also to the unit below.

What can the owners corporation do? Is there a legal way to handle this?

Answer: Issue a notice to comply with the by-laws and continued breach attracts fines/penalties.

Any of the strata managing agent, strata committee and/or owners corporation (subject to various authorities by resolution and as set out in the Management Agency agreement with a strata managing agent) may issue a notice to comply with the by-laws and continued breach attracts fines/penalties.

Depending on whether you have a by-law conditionally permitting pets or don’t have one at all, NCAT has powers to issue Orders:

156 Order for removal of an animal not permitted under by-laws

The Tribunal may, on application by an interested person, order a person to cause an animal to be removed from a parcel within a specified time, and to be kept away from the parcel if the Tribunal considers that the person is keeping an animal on the parcel in contravention of the by-laws.

An order under this section ceases to have effect if the keeping of the animal is subsequently authorised in accordance with the by-laws.

158 Order for removal of an animal permitted under by-laws

The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.

The Tribunal may order that the person–
1. cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or
2. within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.

Attempt at mediation through NSW Office of Fair Trading is first required.

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

This post appears in Strata News #429.

Question: Our elder neighbours below complained about our footstep noises on our hard floors. We have been served a breach notice and instructed to fix the issue. No expert reports have been obtained. What do we do about this notice to comply with a by law?

I live in a 2 year old building with elderly residents below. These neighbours often complain about footsteps noises from our unit. The lounge room is hard ceramic tile flooring and bedrooms are carpeted.

What can I do? Strata issued us with a final warning notice to comply with a by law 14 (NSW) by placing rugs.

I’m questioning why I need to place rugs or carpet to reduce noise? I did not change the flooring. Also, there is no expert report about how many decibels of noise. The complaint and noise breach is only based on information supplied by the elderly neighbours. Why should my family and I suffer?

Answer: You are not allowed to create a nuisance.

Unfortunately, your rights to exposed flooring have to be balanced with the rights of other residents to quiet enjoyment.

You are legally required to comply with by-law 14 and, in our view, the requirement to place rugs is a reasonable one to prevent the transmission of noise.

Further, you are not allowed to create a nuisance (likely from your flooring).

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

This post appears in Strata News #429.

Question: A resident pet owner does the right things cleaning up dog poo on common property but not within their own lot. How do we enforce clean up of their lot and stop the smell!

A lot owner has felt it necessary to draw the Strata Committee’s attention to repeated instances of pet faeces not being promptly cleaned up. The odour is abhorrent for neighbours and offensive to visitors entering our property.

We note that dog faeces is promptly taken care of within common property. However, what can be done to encourage dog owners to take the same immediate steps within their lot?

When asked they become as offensive and their dogs!

Answer: You should check your by-laws. It is likely that the smell would constitute a “nuisance” under the strata legislation.

You should check your by-laws, as in our experience most pet by-laws impose on the owner of the pet the responsibility to clean up after the pet inside and outside of the lot and require that no malodour escapes from the lot.

Even if your by-laws or the owner’s pet approval does not specify the above, it is likely that the smell would constitute a “nuisance” under the strata legislation.

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

This post appears in Strata News #425.

Question: Is there a standard template letter to advise residents or remind them of the ByLaws?

I am a new strata secretary.

We have battled and are still battling owners who were dysfunctional, they are difficult to deal with. I want to remind them of the ByLaws.

Is there a standard template letter to advise residents or remind them of the ByLaws?

Answer: In a word no.

In a word no, each strata firm just makes up one to suit themselves (so you can do the same) if you are the Secretary of the scheme.

Please ensure you don’t provide the standard bylaws if there are others that have been registered. Also, note that the standard ones vary depending on when your scheme was built.

Karina Heinz Progressive Strata Services E: manager@prostrata.com.au P: 02 9389 9599

This post appears in Strata News #400.

Question: With seeking permission, a lot owner has planted a cactus on a roof section of our building. Is this a breach of bylaws as this lot owner has changed the common property? Should they be served with a notice to comply with a by law?

A lot owner has planted a cactus on an area described in the strata plan as common property-Awning, and common property-Roof.

This area forms the ceiling of the units below and has water proofing and stones on top to protect the area from sun and birds. There are no railings and is open to the environment and between 5 the 7 levels up the building.

No permission was given by the owners corporate. Does this contravene the act and has this lot owner has changed the common property? Should they be served with a notice to comply with a by law?

Answer: If anything is installed on common property without the permission of the committee, the committee can take steps to remove it.

If anything is installed on common property without the permission of the committee, the committee can take steps to remove it. It has no legal authority to be there. The committee are charged with administering the scheme between General Meetings of the owners, so how the common areas are maintained is within their gambit.

Fair Trading reports they have seen more leniency by scheme’s during COVID by committees on enforcement of bylaws. They are finding committees understand that people are home and some are extremely isolated and thus schemes are allowing different things for people so they can manage the stress, which is unprecedented for some at this time.

Fair Trading (NSW) have indicated that scheme’s that wouldn’t ordinarily allow pets, are, and so on. Committee’s need to find a very considered balance at this time between enforcement of bylaws to maintain harmony in a scheme where now people are not just living together but working at home together, and what they can let go during this period to maintain people’s humanity when their ability to do so much, is limited.

It is possible this person is unaware of the protocols and so the committee may wish to decide that for the next 3 months there won’t be any damage, and so you can simply to inform the person of the appropriate process, and that the committee will review if it can stay in the coming months when a face to face meeting can be held to discuss it.

This will let them know it’s not OK to just commandeer common property and it may not be permanent, and so when life has returned to normal the committee may then advise it has to go.

NB the discussion should be confirmed in writing by the strata manager so they can’t refute they were told later. It should refer to the extenuating circumstances of COVID.

Karina Heinz Progressive Strata Services E: manager@prostrata.com.au P: 02 9389 9599

This post appears in Strata News #365.

Question: What do you do when a Strata Committee member is the one breaching By-laws? How does a resident commence proceedings against a Strata Committee member?

What do you do when a Strata Committee member or members breach any one of the Owners Corporation’s By-laws which in turn is a breach of one of the provisions in the Strata Schemes Management Legislation? How does a resident commence proceedings against the Strata Committee member/s?

Answer: The same process applies as would apply to any other interested person.

The quick answer is – the same process applies as would apply to any other interested person.

The lot owner would need to apply for mediation with Fair Trading, and an attempt at mediation would need to be made. Note that any of the parties can refuse to attend mediation in which case Fair Trading supply you with a letter saying mediation was unsuccessfully attempted. The lot owner could then make an application to NCAT in their own name against the members of the strata committee if they were seeking personal orders against the (note they would have to name the strata committee members against whom they were seeking orders) or the Owners Corporation if they were seeking orders against the owners corporation. The claim could potentially be made under either s37 or s232 of the Strata Schemes Management Act 2015.

Allison Benson Kerin Benson Lawyers Legal Practitioner Director E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

Please note: This is not legal advice. You should seek legal advice particular to your situation.

This post appears in Strata News #328.

Question: The Strata Committee has resolved to issue a notice to comply with a by law. Can either the Secretary or Chairman sign the Notice to Comply and issue it?

Answer: The chairperson’s only role is to chair meetings so they should not sign and issue the notice to comply.

The notice to comply is a prescribed form: Notice to Comply With a By-Law.

The chairperson’s only role is to chair meetings so they should not sign and issue the notice to comply. The secretary could sign the form. However, I would strongly encourage the Owners Corporation to affix the seal rather than just signing it. This means either the strata manager or the secretary and chair should witness the seal being affixed.

Allison Benson Kerin Benson Lawyers Legal Practitioner Director E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

Please note: This is not legal advice. You should seek legal advice particular to your situation.

This post appears in Strata News #325.

Question: Our owners corporation chairman allows his dog to foul the garden which is common property. What action can be taken for this bylaw breach? Can he be fined?

Answer: The breach by the Chairman is no different from any other owner breaching a bylaw. A breach of notice to comply with a by law is to be issued.

The breach by the Chairman is no different from any other owner breaching a bylaw. A breach of bylaw notice is to be issued.

146 Notice by owners corporation to owner or occupier:

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.

The notice must contain a copy of the specified by-law.

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.

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.

PLEASE NOTE: If you follow this link to Section 146, click on Secretary. The definition in the Act will come up. This is not the secretary in the scheme, it is the commissioner.

If the Chairman breaches this bylaw again, then fines and/or penalties can be sort via NCAT.

PLEASE NOTE: If you wish to pursue the fine then you will need good evidence. For example, witness statements, photos if possible etc. This evidence will need to be of things the Member can rely on just as if you were in the Supreme Court.

Karina Heinz Progressive Strata Services E: manager@prostrata.com.au P: 02 9389 9599

This post appears in Strata News #317.

Question: Is the owners corporation able to issue ‘on the spot’ fines for what they consider breaching strata bylaws? Is this even legal? How do we challenge this?

We recently had an entertainment unit/furniture delivery. The delivery trunk entered into the delivery bay and because we did not make a booking, they fined us $300 for breaching strata bylaws and locked our keycard until we paid on the spot.

We did not tell the delivery truck to enter, they followed another car already going in. Strata accused us of allowing the truck in. Also, they allowed us to do the delivery but fined us anyway.

Is this legal to charge on the spot fines for breaching strata bylaws or is there any laws protecting us from this type of fine or are we able to challenge strata?

Answer: The owners corporation does not have the power to issue fines. Only NCAT has jurisdiction to issue fines.

The owners corporation does not have the power to issue fines. You should try to obtain a refund on the basis that only NCAT has jurisdiction to issue fines. Of course, they may be trying to disguise this as some “administration” fee via a by-law but it is unlikely to be upheld if challenged.

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

This post appears in Strata News #225.

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.

Although, if you have a strata managing agent with delegated authority to issue a notice to comply with a by law, then your strata managing agent can issue the Notice without any resolution of the strata committee (or Owners Corporation) – see subsection (4) above.

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

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 Committee Concerns OR NSW Strata Legislation pages.

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