A By-line on By-laws

A By-line on By-laws

We get a lot of enquiries about by-laws. What is by-law? In simple terms, it is a statutory contract/rule governing the use of common property between the Owners Corporation and lot owners, tenants and sometimes visitors.

By-laws must not be unlawful, unreasonable, oppressive or discriminatory. So long as these requirements are met and proved, a by-law can be passed and registered on just about any subject matter.

By-laws are registered on the title to the common property, which is a separate title to that of lot owners. It is important to carry out a title search of the common property and obtain a full copy of the by-laws to determine how (if at all) they affect your lot.

In addition to being registered, by-laws may be amended; added to; or repealed.

Owners Corporations may determine the by-laws that are preferred to suit their lifestyle. A by-law cannot restrict a dealing with a lot, including restrictions relating to children and assistance animals.

Owners Corporations can choose to adopt model by-laws or design their own.

By-laws, to have force and affect, must be registered within 6 months after a special resolution has been passed

Part 7 of the Strata Schemes Management Act 2015 is where one finds the legislative provisions relating to by-laws see Sections 133 to 150 inclusive.

For strata schemes registered prior to 1 July 1997, Schedule 2 of the Strata Schemes Management Regulation 2016 apply.

Model by-laws which govern strata schemes that came into existence on or after 1 July 1997 are as follows:

• One of the sets of Model by-laws set out in Schedule 1 of the Strata Schemes Management Regulation 1997 where the strata scheme was registered before 1 September 2005.
• One of the sets of Model by-laws set out in Schedules 1 – 6 of the Strata Schemes Management Regulation 2005, where the strata scheme was registered on or after 1 September 2005 but before 1 September 2010.
• One of the sets of Model by-laws set out in Schedules 2 – 7 of the Strata Schemes Management Regulation 2010 where the strata scheme was registered on or after 1 September 2010 but before 30 November 2016.

For strata schemes registered on or after 30 November 2016, Schedule 3 of the Strata Schemes Management Regulation 2016 may be adopted.

New model by-laws include a by-law dealing with smoke penetration and make it clear that cigarette smoke can be a nuisance or a hazard to other residents.

One contentious issue in all schemes is hard flooring. Now, if one wants to install hard flooring (other than in a kitchen or bathroom), consent needs to be obtained. Some schemes may have by-laws which deal with the installation of hard flooring. For those that don’t, General Meeting approval is required in accordance with Section 110 of the Strata Schemes Management Act 2015.

Pets have always been a contentious issue and, in order to give some comfort and limit disputes, certain pets are allowed and others are allowed with permission.

Ignorance of by-laws does not constitute a defence in the Tribunal.

The Strata Schemes Management Act 2015 allows a penalty to be imposed for a breach of by-laws. If a penalty has been imposed in the last 12 months, a further penalty can be imposed.

The Tribunal can impose a penalty up to 10 penalty units ($1,100).

With the commencement of the Strata Schemes Development Act 2015, any change of a by-law must be lodged in the form of a consolidated version – see Clause 24 of the Strata Schemes Development Regulation 2016. This ensures the folio for the common property is more concise and that all by laws (adopted by or lodged with the strata scheme, together with any changes to those by-laws) affecting the strata scheme are available in one document.

Any time you purchase a strata lot, your lawyer or conveyancer will have done some searches and enquiries. These will include searches of the title to your lot and a search of the common property title.

It is incumbent on lawyers, conveyancers and agents to have a copy of by-laws attached to contracts and leases.