This article is about making WA strata bylaws.
Question: In a small 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?
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Answer: It really depends on if it is a governance by-law or a conduct by-law you are wanting to create.
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 by-laws it is a special resolution. This applies for amending or repealing by-laws 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 deal 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 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
Mark Hay Realty Group
E: [email protected]
P: 08 9225 7000
This post appears in Strata News #391
Have a question about WA strata bylaws or something to add or something to add to the article? Leave a comment below.
Read next:
- WA: Q&A Strata Council Roles and Responsibilities – Lot Owner Correspondence
- WA: How Will the New Strata Titles Legislation Affect our Council of Owners?
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Have a look at the Strata Titles Act 1985 section 42. It may shed some light on how by-laws are enforceable (provided they are not inconsistent with the Strata Titles Act itself s42 (1)).
(6) Without limiting the operation of any other provision of this Act, the by laws for the time being in force bind the strata company and the proprietors and any mortgagee in possession (whether by himself or any other person) or occupier or other resident of a lot to the same extent as if the by laws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident respectively and as if they contained mutual covenants to observe and perform all the provisions of the by laws.
(7) A proprietor or mortgagee in possession of a lot shall take all steps that are reasonable in the circumstances to ensure that every occupier or other resident of that lot complies with the by laws for the time being in force.
Penalty: $400.
My question is: Are building by-laws actually enforceable by law given they are not in the legislation? My understanding is that building by-laws are not legislation, however those strata by-laws outlined in the Strata Act 1985 (Schedules 1 and 2) are because they are in the legislation.
In our strata we have a ‘no pets permitted’ bylaw in 6 townhouses. This bylaw was introduced before any of the current owners purchased their townhouses. I have tried at 3 AGMs to repeal the bylaw. We’ve had 4 votes to repeal, 2 against and we needed 5 votes for the 75 percent to be successful in the repeal. The 2 no voters against don’t live in complex.
Would SAT deem the current bylaw to be unfair? We could then revert back to the standard pet bylaw eg approval is needed from strata council.
Really hope you reply to me thanks Steve.
Hi Steve
We have had this reply come in from Phil Langton, Langton Strata Management:
Their stance may not be unreasonable by the Strata Titles Act. a better argument for unreasonable is required other than 2 no – 4 yes.
You appear to of diligently tried to repeal a by-law that was stopping you having a pet at the complex. If that is a true indication, I could also say someone diligently upheld their rights to say no.
Your query leaves out certain details for me to explore the possibilities of a solution.
You refer to some voting numbers that would imply you are trying to repeal a Schedule 2 by-law which requires less than 25% of voters to not vote against and at least 50% to vote for the repeal.
You refer to the possibility of SAT repealing back to the standard by-law which you say is strata council approval.
That statement is not true as the standard pet by-law does not require approval by the strata council on behalf of the strata company.
The standard pet by-law requires the pet owner to remove the pet if there have been complaints and notice has been given by the strata council on behalf of the strata company.
Are the 2 no voters turning up for the meetings or voting no via proxy?
Were they financial at the time of the vote?
Do all the townhouses have the same unit entitlement? (because 25% of the vote being No is based on that covering at least 25% of the unit entitlement)
My first port of call would be to write to these two owners, opening a dialog to better understand their no votes. (Writing is best because it proves a course of communication in the matter and indicates the position and reasonableness of each party) This paperwork may become supporting documentation if you try to make a case to SAT.
Is it noise, smell or an aversion to pets by a current tenant if they are renting out?
There is also an argument in a difficult market for renter with pets or potential owners.
Referring back to the wisdom of the original by-law it still allows for control and pets to be removed under request.
Howling dogs, meowing/spraying cats (by laws/Rules could see all cats neutered, licensed and micro chipped) threatening packs of large dogs could be eliminated.
Owners could be confined to 1 or 2 cats or 1 or 2 dogs each of a particular size.
The standard by-law would be your control but fine turning could be a set of house rules defining acceptable pets and behaviour.
The diplomatic approach is always the first try. If owners work together there is so much more people can do. There may be something the No voters would like that they have not even thought about.
Remember all owners in agreement can change anything.
SAT: if all else fails you need to seek advice from a suitably qualified Practitioner i.e. Lawyer or Strata Consultant to enquire which would be the best approach/Order to be sort from SAT in this matter.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Hi Phil
Thanks for the reply.
The voting was yes voters 66 percent unit entitlement (4 lot owners 17,17,16,16). No voters 34 percent unit entitlement (2 lot owners 17,17) (There are 6 lots) The no voters, vote by proxy.
We have been down the diplomatic path no go. Have explained they could include no pets on rental agreement if they don’t want pets in their property, rental and resale potential etc. Each unit has a separate yard. I read about a case were the adjudicator said there is clearly no rational basis that the pet could cause any difficulty to any other lot owner.The adjudicators conclusion was that such a bylaw is unreasonable. Based on that the adjudicator found that bylaws that impose a ban on pets are invalid.
Hope the unit entitlements make sense. Waiting your reply for any info is greatly appreciated
thanks Steve