Moving Into A Strata Community


SSKB looks at by-laws and rules for residents new to a strata community

Moving into a strata community opens the door to a whole new style of living which is quite different to owning or renting a stand-alone residence.

The main difference is by-laws, or rules, which govern each strata complex.

By-laws/rules are set by all owners and are unique to that building. They may cover access to common property (such as pool opening times), visitor parking and noise limitations.

Before moving into a new strata building, ask your landlord (or property manager) or the seller for a copy of the by-laws/rules that apply to your community.

A body corporate/owners corporation is a legal entity, and is subject to state government legislation. It is obliged to keep financial records as well as convene an Annual General Meeting. The owners will be represented by a Committee who may hold meetings and these must be documented and made available to owners.

Enforcing by-laws/rules is the responsibility of body corporate/owners corporation. If the matter cannot be resolved using self-resolution, each State/Territory has its own regulatory body which can help.

Queensland

Most bodies corporate are a community titles scheme registered under the Body Corporate and Community Management Act 1997 (the BCCM Act). In addition to the BCCM Act, each scheme is registered under one of five regulation modules. There are also regulations that apply to all bodies corporate.

The process to deal with breaches of by-laws is addressed by the Office of the Commissioner for the Body Corporate and Community Management.

The Body Corporate is responsible for enforcing its by-laws. The Committee as the administrative arm of the Body Corporate is usually responsible for ensuring all owners and occupiers comply with the by-laws. However, owners and occupiers can also commence enforcement action if certain conditions are met.

Broadly speaking, the steps involved are:

  • Self-Resolution
  • Conciliation
  • Adjudication
  • Queensland Civil and Administrative Tribunal (QCAT).

In most circumstances the BCCM Act requires that an applicant (usually the body corporate) has made an attempt to resolve the issue (Self-Resolution) in an informal manner.

If that doesn’t work, the first formal step commences with the issue of mandatory (Contravention) notice, however there are limited circumstances in which the service of a notice is not required

The decision to give a Contravention Notice can be made by the Committee, or the Body Corporate at a general meeting. The purpose of the Notice is to ask the person not to repeat the breach

There are two types of Contravention Notice;

  • Continuing Contravention Notice (Form 10) – the Body Corporate can give such a notice to an owner or occupier if it believes that they are breaching a by-law, and it is likely that this will continue.

Example: where an owner has made a change to the outside look of their lot without the approval required in the by-law.

  • Future Contravention Notice (Form 11) – the Body Corporate can give such a notice to an owner or occupier if it believes the person has breached a by-law and it is likely that the contravention will be repeated.

Example: where an occupier often has parties which breaches a noise by-law.

The nature of the by-law breach will determine which Notice is appropriate.

The Contravention Notices are available at https://publications.qld.gov.au/dataset/body-corporate-by-laws. Alternatively, the Body Corporate can send a letter that incorporates the same information in the Notices.

If a person does not comply with a by-law Contravention Notice, the body corporate can decide to either

  • start proceedings in the Magistrates Court for the offence of failing to comply with the Notice
  • apply for Conciliation to enforce the by-law.

In most cases Conciliation is compulsory and involves a face-to-face or teleconference meeting between the parties which is facilitated by a conciliator.

If Conciliation is not successful, the next step is Adjudication.  An adjudicator makes a decision after considering the application and written submissions from all those affected by the dispute. An adjudicator can make an order that is ‘just and equitable’ to resolve the dispute.

An adjudicator’s order can be appealed to the Queensland Civil and Administrative Tribunal (QCAT).

Additional information regarding by-law enforcement (including Conciliation and Adjudication) in Queensland is available at https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/enforcing-by-laws/.

 

New South Wales

Owners Corporations can determine the by-laws that suit the preferred lifestyle of the strata scheme. A by-law must not be harsh, unconscionable or oppressive. No by-law is capable of restricting a dealing in a lot, including restricting short-term letting. By-laws cannot restrict children, and cannot restrict the keeping of an assistance animal.

A copy of your scheme’s by-laws is kept on the strata roll and is available from either the secretary of the owners corporation or from your managing agent (if your scheme has one).

All strata schemes must review their by-laws by 30 November 2017. Schemes may wish to use the Model by-laws (see below) as a guide when reviewing their own by-laws.

The Strata Schemes Management Regulation 2016 includes a set of model by-laws which provide ‘sample rules’ to guide the Owners Corporation in setting their own by-laws. Owners Corporations can choose to adopt these or make changes to better suit their circumstances to manage issues in strata like overcrowding, pets, parking, and smoke drift. Schemes are not required to adopt or adapt any of the model by-laws, they are available to assist schemes in reviewing and making by-laws to suit their scheme. Model by-laws cannot be the by-laws for your scheme unless they are first formally adopted by the Owners Corporation and registered with the Office of the Registrar-General.

The model by-laws include options for:

  • permitting pets
  • dealing with nuisance or hazardous smoking
  • helping owners corporations address noise and short-term letting
  • measures to prevent overcrowding.

http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Strata_schemes/Bylaws_in_your_strata_scheme.page?

 

Victoria

All Owners Corporation have rules for the control, management, use or enjoyment of common property and lots. Many of these are based on the set of model rules outlined in the Owners Corporations Act 2006.

All lot owners and tenants must be given a copy of the rules before they move in.

Owners Corporation can apply to the Victorian Civil and Administrative Tribunal (VCAT) to enforce rules and the tribunal can impose penalties for breaches of rules.

VCAT can hear matters such as disputes about how Owners Corporation meetings are conducted, or disputes between the owners corporation and its manager about managers’ fees or performance or clauses in the management contract. These applications are made under the Owners Corporations Act 2006.

You can make these types of applications if you are an Owners Corporation, a lot owner or former lot owner, an occupier or former occupier of a lot, or a manager or former manager of an owners corporation.

VCAT cannot hear disputes about the management of service companies or company titles corporations.

https://www.consumer.vic.gov.au/housing-and-accommodation/owners-corporations/rules-and-resolving-disputes/which-owners-corporations-have-rules

https://www.vcat.vic.gov.au/case-types/owners-corporations/owners-corporations-management



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