By-laws are the key governance mechanism of strata schemes, regulating the conduct and behaviour of residents, owners and visitors to a strata complex.
NSW by-laws are regulated by the Strata Schemes Management Act 2015 (NSW) (‘Management Act’) and the Strata Schemes Management Regulation 2016 (NSW), which provide guidelines as to the type of by-laws which may be implemented by a strata scheme.
Section 136 of the Management Act lists a number of matters about which the owners corporation may make by-laws. The list covers issues such as:
- security;
- whether or not pets are permitted on the scheme;
- parking;
- floor covering;
- garbage disposal; and
- the conduct of residents and visitors.
It must be recognised that the list of powers in section 136 are not exhaustive and that the owners corporation have been conferred with the power to determine the by-laws that suit the preferred lifestyle of the strata scheme.
Nevertheless, such powers are still constrained by certain limitations.
Under these regulations:
- Conflicts between existing laws and by-laws are prohibited
- By-laws cannot be harsh, unconscionable or oppressive
- By-laws must adhere to anti-discrimination laws
- By-laws cannot interfere with an owner’s voting rights
- By-laws must not unreasonably restrict an owner’s ability to sell or lease their property
- By-laws cannot prevent pet ownership without a valid reason
- By-laws cannot prevent short-term letting of an owner’s principal residence
Can by-laws be varied?
Pursuant to section 141 of the Management Act, the owners corporation can amend, repeal or add to the by-laws by special resolution. This is typically achieved through a vote at a general meeting by all owners. The owners corporation must agree to a motion put forward on the proposed new by-law with no more than 25% of votes case against it.
If successful, a notification of the amendment, repeal or addition must then be lodged with the Registrar-General at the NSW Land Registry Services within six months of its passing.
What happens if a by-law is breached?
By-laws bind not only the owners corporation and owners, but also mortgagees in possession, tenants and occupiers.
In accordance with s 146 of the Management Act, the owners corporation may require the owner or occupier of a lot to comply with a by-law.
If a breach of a by-law occurs, the following process can be carried out by the owners corporation:
- The offender is requested to cease breaching the relevant by-law by the owners corporation or strata committee.
- A notice to comply can be issued to the offender through a majority vote, outlining the by-law that had been breached and requesting that such conduct end, otherwise risk facing a fine.
- If the breach is not rectified, the owners corporation may contact the New South Wales Fair Trading for mediation services to determine a solution.
- If mediation is ineffective, the owners corporation can request a decision from the New South Wales Civil and Administrative Tribunal. The Tribunal may issue a fine on the offender of up to $1,100 in the first instance, which may increase up to $5,500 if the offender continually fails to comply with the Tribunal’s orders.