By-laws which govern the activity and behaviour of owners in and around their strata title property can be difficult for owners to accept, especially if they are accustomed to living in stand-alone properties with far fewer restrictions on their activity. However, it is important they are generally adhered to, in order to maintain the integrity of the strata scheme, the value of the properties contained within it and the peaceful and quiet enjoyment of all members.
As the body which collectively manages the building or land under the strata scheme, it is the owner’s corporation’s responsibility to ensure that members of the scheme comply with the by-laws set out under the scheme.
What if a by-law is breached?
As disputes relating to by-laws can mean protracted and costly litigation, it is generally best for the owner’s corporation to approach the owner in breach first to seek their voluntary compliance. It may often be the case that occupiers are not aware they are breaching a by-law. This simple step is often overlooked and can potentially produce the best result for all parties.
If voluntarily compliance cannot be secured, a formal letter requesting compliance can be sent to the owner or occupier breaching the by-law. This communication could also suggest that a negotiation or alternative dispute mechanism is carried out to settle the matter in a swift and cost-effective manner.
If the occupier in breach is a tenant, chances are they’re also breaching their lease agreement by not complying with the scheme’s by-laws. We would suggest taking up the matter directly with the owner or property manager of the lot who may themselves seek to enforce compliance.
If none of these methods prevail, the Strata system in NSW has a specialised dispute resolution process. The main two formal remedies that can be pursued against the offending owner or occupier to effect compliance are:
- an application to the principal registrar of the Civil and Administrative Tribunal of New South Wales (NCAT) for an order by an Adjudicator requiring compliance with the by-law, or
- the service of a ‘compliance notice’.
Application to NCAT
Before the Principal Registrar will accept an application the Registrar must be satisfied that mediation has been attempted and was unsuccessful.
An appeal may be made to NCAT against an order of an Adjudicator.
The compliance notice must be in the approved form (Form 44) and require the owner or occupier to comply with the by-law. Before the notice can be served:
- the Owner’s Corporation must be satisfied that a by-law has been contravened; and
- a resolution of the Owner’s Corporation must be passed authorising service of the notice.
The resolution can identify a specific incident of contravention (eg. ‘on 9th May 2014 you parked in the visitor’s parking area in breach of by law…’) or be more general in scope identifying the particular type of contravention (eg. Parking in a visitor’s parking area).
The resolution can be passed by the executive committee of the Owner’s Corporation or by a strata managing agent exercising a validly delegated power.
If this notice is not complied with, NCAT can impose pecuniary penalties.
If you require assistance with ensuring compliance with by-laws, please feel free to contact us.