British wit and raconteur GK Chesterton made the pithy observation, ‘when you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws’.
When it comes to living in a strata title community, the by-laws ought to be ‘the big laws’ – the broad common sense rules agreed to by all owners to maximise the enjoyment of all residents.
In New South Wales, NSW legislation provides model strata title by-laws which many communities are likely to have in place. But just as all communities are different, so too are by-laws, and these often differ from property to property.
Where a community has custom by-laws specifically relating to their property, these should be specifically highlighted to potential purchasers and tenants to avoid inadvertent breaches. By-laws aren’t merely suggestions – they are legally binding on all residents.
Common sense applies to enforcing by-laws. A quick verbal reminder of the by-laws in passing is likely to be enough for most residents, including those who may be simply unaware of a particular by-law, or to jog the memories of those who may have conveniently ‘forgotten’. However if the breach occurs on a regular basis, or too many residents fall foul of a particular by-law, a letter from the committee should be sent to every property and perhaps placed on a community bulletin board.
If a particular resident is being recalcitrant, a ‘Notice to Comply with a By-Law’ can be issued by the committee as an official warning. The notice, which can be found on the NSW Government Fair Trading site, must include a copy of the by-law in question, how it was breached and what must be done to stop the breach. A notice to comply is the upper limit of an owners corporation’s power to enforce a by-law, but this often enough to induce compliance.
However where a matter needs to be escalated further, an owners corporation can make an application to NCAT. The Tribunal may award a penalty of up to $550 if satisfied the compliance notice was correctly served by the Owners Corporation, and there has been a subsequent breach. Applications for penalties can only be made within 12 months of the original notice. It is important to note that in coming months, amended NSW legislation will increase the fine for breaches of by-laws in NSW to up to $2200.
Only NCAT has the power to issue fines to residents who continue to breach by-laws. Some committees in the past believed they have the power to set and issue fines, but this is not the case! If you require assistance in dealing with breaches of by-laws, speak to your SSKB community managers. They can guide you through process in a legally correct and community-wise manner. Further information on enforcement of by-laws can also be found on the NSW Government Fair Trading website.
To avoid the tyranny of the ‘small laws’ — those nasty, micro-managing, nit-picky restrictions that can make a complex feel like a prison camp than a home – it is important to get the by-laws right. A committee should consider a by-laws review every couple of years to ensure they continue to meet the needs of their community. Next month we’ll be looking at whether your community’s by-laws need a New Year’s overhaul and process for updating them.