This article about how the new changes to the WA Strata Titles Act classify Schedule 1 and Schedule 2 by-laws has been provided by Shane White, Strata Title Consult.
WA By-Laws – What’s Changed? Transition – Governance / Conduct
When reading the by-laws in the new version of the Strata Titles Act, you will see that the by-laws in Schedule 1 are classified as “Governance by-laws”.
Those by-laws in Schedule 2 as “Conduct by-laws”.
One of the biggest changes to the standard by-laws is the inclusion of some of them into the Act itself.
Whilst others have been removed from Schedule 1 and incorporated into Schedule 2.
Schedule 1 sees the following:
- By-law 2 – Power to decorate moved to Schedule 2 as by-law 15
- By-law 11 -General Meetings of strata company
- By-law 12 – Proceedings at general meetings
- By-law 13 – Restriction on moving motion or nominating candidate
- By-law 14 – Votes of proprietors
- By-law 15 – Common Seal
All become part of the Act itself and can be found in Part 8 Strata Company, Divisions 1 – Functions and
Division 3 Procedures.
Of special mention and importance is the fact that the strata company must comply with the “Objectives” which are detailed in section 119.
When “implementing processes and achieving outcomes” the strata company must not make resolutions regarding the use and enjoyment of lots and common property if those resolutions are:
- unfairly prejudicial or discriminatory
- oppressive or unreasonable
- must act consistently with the Act or By-laws
- must consider the merits of any proposal put to it
Schedule 2 sees the removal of by-law 5 Children playing upon common property as it was deemed to be discriminatory.
Owners must also be aware that any resolution may be overturned for failure to meet the above objectives despite the fact that it reflects the will of the majority.
The strata company must not act oppressively or improperly deny a vote on a resolution or fail to give the opportunity to vote on a resolution.
This post appears in Strata News #299.
Are My By-Laws Consistent With the Act?
The new changes to the WA Strata Titles Act classify Schedule 1 as Governance by-laws and Schedule 2 as Conduct by-laws. These will come into effect when the Act is Proclaimed.
By virtue of the changes to the Act, all strata schemes shall operate under the provisions of the Schedule 1 Governance by-laws and the Schedule 2 Conduct by-laws.
If you are in a strata scheme where you have been operating under the standard Schedule 1 and Schedule 2 by-laws, where there have been no changes or amendments to the by-laws, you will now operate under the standard Schedule 1 and 2 by-laws and the provisions of the Act for the conduct of meetings and voting.
If you need to know how a meeting is conducted, you will need to refer to the Act under Part 8 Divisions 2 and 3 which encompasses sections 119 through to 134 inclusive.
These sections contain the content of the former by-laws which were removed from Schedule 1 and some new sections which allow for meetings and voting to be conducted remotely / electronically.
What If My By-Laws Were Changed?
Providing that your current by-laws are not inconsistent with the Act, they may still be used.
If they are not, the conditions provided under section 46 of the Act will apply.
That is to say that:
46. Invalidity of scheme by-laws
Scheme by-laws are invalid as follows —
- to the extent that there is no power to make the by-laws;
- to the extent that they are inconsistent with this Act or any other written law;
- to the extent that they are inconsistent with a restricted use condition;
- for a leasehold scheme — to the extent that they are inconsistent with the covenants or conditions of a strata lease over a lot in the scheme;
- to the extent that they purport to deny or limit the right of a member of the strata company to vote on a proposed resolution of the strata company (except as set out in this Act);
- to the extent that they prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing with a lot;
- to the extent that they purport to discharge or modify an easement or restrictive covenant;
- to the extent that they prohibit or restrict the keeping on a lot of an animal that is used as an assistance animal by a person with a disability who is an owner or occupier of a lot;
- to the extent that they prohibit or restrict the use on the parcel of an assistance animal by a person with a disability;
- to the extent that, having regard to the interests of all of the owners of lots in the strata titles scheme in the use and enjoyment of their lots and the common property —
- they are unfairly prejudicial to, or unfairly discriminatory against, 1 or more of the owners of lots; or
- they are oppressive or unreasonable.
It might be that your current scheme by-laws were created in a Management Statement?
This in itself is not the problem as many strata schemes have a set of by-laws created by management statements.
It’s when all the standard by-laws were repealed and then cast into Schedule 1 as a job lot.
By-laws of this type will still be able to be used in as far as they must be dealt with as if they were in the correct Schedules of Governance or Conduct being Schedule 1 or Schedule 2 under the new Act.
If the situation arises that any of the by-laws require amendment or new by-laws are required to be added or repealed, then those alterations need to be dealt with as if the by-law was in the correct schedule under the new Act.
Further to this, the new Act requires that any changes, amendments or additions to the by-laws will trigger the requirement to lodge a consolidated set of all the by-laws each and every time any by-law is changed. See New reg. 57(2)(a) and (b)
The benefit of this is that only the last registered change of by-laws document needs to be searched.
The downside is that all the by-laws will need to be reviewed and separated into their correct Schedules of Governance and Conduct and dealt with as such. By-laws that fail to meet the new requirements of “Validity” under section 46 should be removed.
This will not generate the requirement to pass all the previous by-laws again; it will ensure that the existing by-laws are placed into their correct Schedules and any changes are dealt with by the proper resolutions.
By-laws that are currently in the wrong Schedules will need to be switched over into the correct Schedules and included in the consolidated set together with the new by-laws that have been created.
This post appears in Strata News #290.
Have a question about the Schedule 1 & Schedule 2 bylaws or something to add to the article? Leave a comment below.
- WA: Reforms to WA Strata Legislation – As a Lot Owner, Should I Care?
- WA Strata Titles Amendment Act 2018: duties of a council member and how to protect yourself from liability
Strata Title Consult
E: [email protected]
Disclaimer: this article should not be relied on as legal advice.