WA: Q&A Strata bylaws + bylaw consolidation

This article is about the strata by-laws and the by-law consolidation or bylaw review process in WA, particularly after the amendment to the Strata Titles Act 1985.

Table of Contents:

• QUESTION: Is a by-law unreasonable or oppressive if it disallows the parking of more than 1 vehicle in the bay which is part of a lot? In some instances, more than one vehicle can fit without being a nuisance to others.
• QUESTION: In my strata in WA, we have bylaws that reference sections of the previous act schedule 1 and 2. Do we need to revise the bylaws management statements so they refer to the new act or sections?
• QUESTION: Are dogs allowed in a strata apartment complex pool area? Should we have a strata bylaw about this?
• QUESTION: Has anyone set up a template list of standard strata bylaws for WA? These could be a great starting point for conducting a bylaw review to reflect the latest requirements under the Act in Western Australia.
• QUESTION: In a small WA strata with 4 units do all the owners have to agree on by-laws being created? If 3 out of 4 agree, is that sufficient?
• ARTICLE: Strata by-law consolidation: some tips on how to approach the new rules

Question: Is a by-law unreasonable or oppressive if it disallows the parking of more than 1 vehicle in the bay which is part of a lot? In some instances, more than one vehicle can fit without being a nuisance to others.

Answer: Consideration must be given to the possible impact of parking two vehicles for access to other bays including turning circle and ease of entry, restriction of reasonable pedestrian access and in some cases the ability to afford the same rights to other lot proprietors.

Section 46 of the Strata Titles Act 1985 sets out when a by-law for a Strata Scheme is Invalid. Section 46 states that a by-law is invalid if:

Invalidity of scheme by-laws

1. to the extent that there is no power to make the by-laws;
2. to the extent that they are inconsistent with this Act or any other written law;
3. to the extent that they are inconsistent with a restricted use condition;
4. 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;
5. 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);
6. to the extent that they prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing with a lot;
7. to the extent that they purport to discharge or modify an easement or restrictive covenant;
8. 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;
9. to the extent that they prohibit or restrict the use on the parcel of an assistance animal by a person with a disability;
10. 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 —

    1. they are unfairly prejudicial to, or unfairly discriminatory against, 1 or more of the owners of lots; or
    2. they are oppressive or unreasonable.

It is important to consider if the car bay is part of the lot, exclusive use or simply common property. In the later two, the area is common property and the reasonability to control and manage common property to the benefit of all lot proprietors sits with the Strata Company. In this case it would be reasonable for the Strata Company to set by-laws to govern the use of these areas.

Something else to consider is that the standard car bay size which is commonly used in local government by-laws applicable to development applications in Western Australia is a minimum car bay length of 5.4m and width of 2.4m. Where there are adjacent walls or posts an additional 0.3m is added to the width. Should the area in question be any less than two times the length (tandem parking) or two times the width (side by side) then it would be more than reasonable to restrict parking to a single-vehicle. Should the area in question be sufficient in size to meet a standard of two car bays then it may be considered unreasonable to restrict parking to a single-vehicle particularly if the area in question is an external part lot.

Additionally consideration must also be given to the possible impact of parking two vehicles on access to other bays including turning circle and ease of entry, restriction of reasonable pedestrian access and in some cases the ability to afford the same rights to other lot proprietors.

Luke Downie
Realmark
E: [email protected]
P: 08 9328 0999

This post appears in Strata News #524.

Question: In my WA strata, we have bylaws that reference sections of the previous act schedule 1 and 2. Do we need to revise the bylaws management statements so they refer to the new act or sections?

In my strata, we have bylaws that reference sections of the previous act schedule 1 and 2. Do we need to revise the bylaws management statements so they refer to the new act or sections? Or is it okay to maintain our bylaws even with reference to the previous versions of the Act unchanged?

Answer: As soon as you want to change any of those bylaws, the consolidation process allows you to bring forward all of the old bylaws into the new format, adopting the new standard schedule 1 and 2 bylaws.

Therein lies the problem. As soon as you want to change any of those bylaws, the consolidation process allows you to bring forward all of the old bylaws into the new format adopting the new standard schedule 1 and 2 bylaws.

The problem is that your existing bylaws may refer to bylaws that have been removed from the current schedule 1 bylaws, the governance bylaw being 11-15 that have been removed, so things that deal with voting and election of counsel, common seal, those things have been removed and incorporated as part of the Act.

The management statement might retain bylaws that deal with a quorum, which is now dealt with in the act, and the Act will supersede any bylaw that’s been created. There are penalty bylaws, and the act covers those. References to levies being under Section 36.

If you’re going to do a change, then it’s up to the strata company whether they want to go through the motions to change every bylaw that refers to a redundant section. Depending on if it’s a governance bylaw, it would require a resolution without dissent and if it was a conduct bylaw, it would need to be a special resolution because you’re actually changing the bylaw. The consolidation only applies to photos or just directly brought over and renumbered in accordance with the new bylaws that are in the current version of the Act.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #485.

Question: Are dogs allowed in a strata apartment complex pool area? Should we have a strata bylaw about this?

Answer: The pool area is provided as an amenity for people.

There have been a number of by-laws in the Eastern states that have already come under fire about animals in Apartment buildings.

The pool area is provided as an amenity for people.

Let us pose this example (assistance animals and guide dogs excluded) what if everybody brought their animal to the pool area, it surely bad enough that there is the odd neighbourly disagreement between owners.

There would be obvious reasons to exclude dogs:

• People who don’t like dogs.
• People who don’t want dear Rover to come over and lick their face or sniff them whilst sunbathing.
• The dogs urinating and defecating in the pool area, for an animal, the world is their toilet.
• Dogs swimming in the pool.
• Disruption to peaceful enjoyment.
• What if the dogs in the pool area go all in and start fighting?
• The safety aspect of small children getting knocked over.

Of course, you may say that this is no different from other owners doing the same once they have had a few sherbets.

Think of the disruption to everyone’s right to peaceful enjoyment?

This situation could have easily been avoided by not permitting any animals in the pool area in the first place.

A strata company is at liberty to register a By-law or make House Rules about the exclusion of dogs from the pool area.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #465.

Question: Has anyone set up a template list of standard strata bylaws for WA? These could be a great starting point for conducting a bylaw review to reflect the latest requirements under the Act in Western Australia?

Answer: In regards to obtaining a set of standard strata bylaws for WA or bylaw templates, these are within the Strata Titles ACT.

Thanks for your enquiry regarding a set of standard strata bylaws or by-law templates and the new legislation in WA. I hope I can offer some assistance in this area to help you navigate the new legislation in regards to by-law changes and locating the information you require.

As you are already aware, the standard set of by-laws that apply to all WA strata properties have been amended under the new Strata Titles Act WA reforms, which came into effect in May last year. These are outlined within the Strata Titles Act WA itself, of which a copy can be found here: Western Australian Legislation – Strata Titles Act 1985, kindly published by the WA Govt Dept of Justice in a downloadable pdf or word document format. Alternatively, a google search brings them up straight away also. [Admin: Try our Strata Legislation page under Western Australia.]

The by-laws that used to apply to all WA strata’s prior to the reforms were known as schedule 1 and schedule 2 by-laws. Any amendments to these were lodged on the strata plan through Landgate for each scheme and were able to be obtained by requesting through Landgate for a copy, or via the strata manager of the scheme. As you are aware these have changed and are now referred to as Conduct and Governance by-laws under the new legislation. These new by-laws now apply in WA and are required to be consolidated with any existing by-laws on a strata scheme that were added or repealed on the older version. Information on this is below on the link I have provided which explains this process. Consolidation is achieved through registration with Landgate.

Guide to consolidating by-laws for strata titles schemes in Western Australia by Landgate is a handy booklet put together by Landgate which clarifies the changes, how they affect each strata and how the new by-laws being introduced into WA strata schemes are to be consolidated with any existing set a strata may have.

In regards to obtaining a set of standard strata bylaws for WA or bylaw templates, these are (as mentioned above) within the Strata Titles ACT WA. The full set of by-laws are laid out one by one for clarity. You simply need to go to pages 257 – 270 of the Act under headings “Schedule 1 – Governance by-laws ” and “Schedule 2 – Conduct by-laws” as copied below from the table of contents front section of the Strata Titles ACT WA. This is the template or more precisely, a ‘copy’ of the by-laws, that a scheme is to use since the reforms. It’s handy that you can download a word doc version of the set of standard strata bylaws for WA that will assist in consolidating with any other by-laws a scheme may have.

If your WA strata did not simply adopt the previous set of by-laws before the reforms, with add in’s or repeals, these need to be consolidated with the new set of by-laws. Legal assistance is advised when undertaking this task, as consolidated by-laws should be reviewed for checking that they are in line with the new reforms to meet the legislation requirements. Your strata manager should be able to assist with this matter. Alternatively, if a scheme had relied on the previous version of by-laws under the Strata Titles Act WA before the reforms without any changes, then this new version is simply the default set the strata scheme now rely on going forward which replaces the older set.

Standard Strata Bylaws for WA

Schedule 1 — By-laws

1. Duties of proprietor, occupiers etc. 212
2. Power of proprietor to decorate etc. 213
3. Power of strata company regarding submeters 213
4. Constitution of council 214
5. Election of council 216
6. Chairman, secretary and treasurer of council 218
7. Chairman, secretary and treasurer of strata company 218
8. Meetings of council 219
9. Powers and duties of secretary of strata company 219
10. Powers and duties of treasurer of strata company 220
11. General meetings of strata company 220
12. Proceedings at general meetings 221
13. Restriction on moving motion or nominating candidate 223
14. Votes of proprietors 223
15. Common seal 224

Schedule 2 by-laws

1. Vehicles 225
2. Obstruction of common property 225
3. Damage to lawns etc. on common property 225
4. Behaviour of proprietors and occupiers 225
5. Children playing upon common property in building 225
6. Depositing rubbish etc. on common property 226
7. Drying of laundry items 226
8. Storage of inflammable liquids etc. 226
9. Moving furniture etc. on or through common property 226
10. Floor coverings 227
11. Garbage disposal 227
12. Additional duties of proprietors, occupiers etc. 227
13. Notice of alteration to lot 228
14. Appearance of lot 228

Kylie Nelson
Eyeon Property Inspections
E: [email protected]
P: 0401448308

This post appears in Strata News #451.

Question: In a small WA strata with 4 units do all the owners have to agree on by-laws being created? If 3 out of 4 agree, is that sufficient?

Answer: It really depends on whether you want to create a governance bylaw or a conduct bylaw.

It really depends on if it is a governance by-law or a conduct by-law you are wanting to create.

To create a governance by-law, a resolution without dissent is required and for conduct bylaws, it is a special resolution. This applies for amending or repealing bylaws also.

Other than in two lot schemes a resolution without dissent requires that 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and no vote attached to a lot in the scheme is cast against the resolution.

For a 3, 4 or 5 lot scheme a special resolution requires that 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens. To pass the votes in favour of the resolution need to equal not less than 3 for a four lot scheme such as yours and not less than 50 % of the total aggregate of the unit entitlements of the lots in the scheme.

It is important to know what constitutes a governance by-law and what constitutes a conduct by-law.

Conduct by-laws are any by-law other than a governance by-law that deals with

• the conduct or an owner or occupier of a lot
• the management, control, use and enjoyment of common property
• landscaping requirements
• maintenance of water, sewerage, drainage, gas, electricity, telephone and other services
• common property insurances
• safety and security
• dispute resolution

Governance by-laws deal with:

• the governance of the scheme; or
• the subdivision or development of the land
• subdivided by the scheme (other than a matter of landscaping); or
• exclusive use of common property in the scheme;

In a 3,4 or 5 lot scheme in WA, Governance by-laws can include by-laws that exempt the Strata Company from a designated function such as procedures of a general meeting or raising levies.

Luke Downie
Realmark
E: [email protected]
P: 08 9328 0999

This post appears in Strata News #391.

ARTICLE: Strata by-law consolidation: some tips on how to approach the new rules

From 1 May 2020, a strata company that wants to make a new by-law, or amend or repeal an existing one, must consolidate all of its by-laws. This means bringing together into one document the assorted documents that may have accumulated over the years representing different by-laws and amendments.

The cost of registering consolidated by-laws with Landgate would be the same as registering one amended by-law. The aim is to encourage strata companies to update their by-laws and make them more efficient.

There is a dilemma for those strata companies which have amended, repealed or introduced a number of by-laws over the years. This is because there may be a number of different by-laws recorded in a number of different documents. It makes sense to consolidate them, but many strata lot owners might be put off by the perceived cost of engaging a lawyer to do the work. Yet consolidation provides the opportunity to review the by-laws as a whole, to see if there are any which are no longer relevant or desirable.

In the domain of strata, the by-laws are rules that all participants are bound to follow. Further, from 1 May 2020, a strata company can not only make an application to the State Administrative Tribunal for an alleged breach of a by-law, it can now seek a penalty for the breach of the by-law up to $2,000.

There is also a dilemma for those strata companies, which might not have had made any or many changes to their by-laws over the years, but are now considering amending a by-law that has been bothering them.

Do they proceed to change the one by-law and trigger the entire consolidation process?

Consolidation: a brake or a booster?

The requirement now to consolidate all of the by-laws, when seeking to amend a single by-law, could inhibit a strata company from changing their by-laws. This might be because of a fear of the expense. Even though a strata company pays no additional fee for registering its consolidated by-laws with Landgate the true cost may be strata manager and lawyers’ fees. These fees would be to review the by-laws to consolidate them and improve them.

Spending money on consolidating a strata company’s by-laws now should be viewed as an investment for the future.

Consolidation ensures a clear set of rules which is easily accessible to all strata scheme members.

One aspect of the new strata regime is creating a clearer structure to strata by-laws, including categorising them into governance and conduct by-laws. This, in turn, should lead to fewer disputes between neighbouring strata lot owners. We all know that disputes often incur substantial costs.

The new strata regime raises the standards of governance for all who live in the strata environment. Previously, inertia, outmoded thinking or inflexible personalities might have prevented a strata community from making positive changes.

Now, having to consolidate by-laws means that strata owners will have the opportunity to reflect on a common vision of the lifestyle of the strata complex. This common vision would be clearly communicated to the lot owners through the by-laws. It is also an opportunity to ensure the by-laws are contemporary.

An example of how important it is to keep up to date with by-laws is in the arena of short-term rentals such as Airbnb. Some strata companies who did not anticipate the Airbnb trend have been caught out. They have some lot owners using their premises for short-stay holidaymakers, even though most of the lot owners are opposed to it.

As there was no by-law preventing short-stay accommodation, such strata companies have been unable to prevent this business activity.

The lesson is to act early and anticipate trends that could affect your strata scheme. These are the things that people should talk about when they have the opportunity to consolidate their by-laws.

Another point to think about is that it is difficult to change a governance by-law (assuming it is consistent with the minimum legal requirements demanded by the Strata Titles Act). That is because such change requires a resolution without dissent.

However, a strata company can consolidate some of its by-laws without the strata company having to vote on the issue, for example, when:

1. removing by-laws that are invalid under the legislation;
2. reclassifying by-laws as ‘governance’ and ‘conduct’ by-laws; and
3. implementing changes to the default by-laws.

Some changes can therefore be relatively straightforward to do.

Make haste slowly

While consolidation is to be encouraged, it should be done carefully. Some complexities come to mind.

For example, there is no prescribed process for how a strata company goes about consolidating its by-laws. This may be a source of tension for some strata scheme members.

The decision to consolidate will fall to either the strata company or the strata council (if there is one). There is no requirement to put this decision to a vote. However, the strata company can decide (by ordinary resolution) that the council is not the appropriate party to consolidate the by-laws.

When reviewing the existing by-laws to see whether any of them are invalid, members of the strata scheme may have opposing views. For example, by-laws cannot be unfair, discriminatory, oppressive or unreasonable, thus requiring a strata company to behave in an ethical manner toward all lot owners. Unfair or discriminatory by-laws are invalid, but if the people who passed the by-laws are the same people tasked with reviewing the by-laws for consolidation, how can those people be impartial?

It will take some time and cost from legal advisers to ensure the consolidation process runs smoothly and the strata company gets the consolidation process right the first time around.

It is apparent that the cost of moving to a consolidated set of by-laws could be higher than the cost that would normally have been associated with changes to a couple of by-laws in the era before 1 May 2020.

Is it worth the cost?

“Prevention is better than cure” is how the old saying goes. So it is with the consolidation of by-laws.
Consolidation is one mode of prevention of disputes which can arise from emotional lot owners arguing over what a by-law really means.

There is a cure. It lies in the technical arguments and adversarial positions taken in a hearing in the State Administrative Tribunal.

But such a cure is costly. One may apply a rule of thumb as follows. If the legal fees required to resolve a dispute in the SAT amount to $300,000, then it is quite likely that preventative legal work would probably have cost something like one tenth of that i.e. $30,000.

It is far better to do preventative work by getting the right sorts of by-laws in place, having them consolidated and in compliance with the new standards. That translates into a recognition that the cost of consolidating a strata company’s by-laws is worthwhile.

Consolidation of by-laws should not be considered solely as a burden. Undergoing the consolidation process should help reduce the scope for strata disputes in the future and make running the strata scheme more efficient. Strata managers and lot owners should positively encourage consolidation.

For more information please contact:

Anthony Quahe
Managing Principal
Civic Legal
T: 08 9200 4900
E: [email protected]

Alexandra Corstorphan
Solicitor
Civic Legal
T: 08 9200 4900

This post appears in the December 2020 edition of The WA Strata Magazine.

Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.

Have a question about strata by-law consolidation or something to add to the article? Leave a comment below.

Read next:

• WA: Reforms to WA Strata Legislation – As a Lot Owner, Should I Care?
• WA: Q&A Notice Periods, Motions and Electronic Notices

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