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"All Strata Schemes are subject to a set of by-laws.  They're essential for the smooth running of every Strata Scheme even though they can cause their fair share of issues.  If you're involved in strata, it would be wise to familiarise yourself with the standard by-laws for your scheme as well as any special ones specifically setup by the Owners Corporation.  Here's a brief explanation of what's involved along with the usual links to some helpful 'additional reading' resources."


STRATA BY-LAWS

 

Why have By-laws?

By-laws are made to facilitate the administration and harmony (ie the smooth and dispute-free running) of the Strata Scheme.  They generally cover the use of common property and the behaviour of residents but can also deal with many other aspects of the scheme.

Without them the scheme would basically operate as a 'free-for-all' situation where anyone could essentially do whatever they pleased to their property, the common property and each other.  Just imagine the sort of chaos that situation would create over time.

By-laws usually pertain to:

  • Parking restrictions and use of allocated areas
  • Keeping of pets
  • Garbage disposal
  • Use of facilities and common property
  • Ownership and Maintenance responsibilities of some common property
  • Behaviour of residents - noise, hanging of washing, offensive behaviour, etc
  • Security and Safety measures
  • architectural and landscaping guidelines
  • other appropriate matters specific to the type of strata scheme in use
  • Installation of Floor coverings
  • Installation and use of Air conditioners, pergolas, tv & satellite access

All residents (tenants and owners) must adhere to the by-laws in accordance with the Strata Schemes Management Act 2015 - Part 7: By-laws (Sections 133 thru 150) or face the possibility of penalties (usually in the form of fines) issued by the NSW Civil & Administrative Tribunal (sometimes referred to as NCAT).  EVERYTHING ABOUT BY-LAWS IS IN "PART 7" GUYS - So don't skip over the link I just gave you.

Now, don't forgot our 'favourite' place - NSW Fair Trading.  They have some wonderful information on all this so just click on this link : By-laws in Your Strata Scheme  You won't be sorry....and it's much easier to read than the legislation.

TIP: By-laws are enforceable by law so make sure you read the Resolving disputes information page for more information on this subject

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Model By-laws

In the previous Strata Schemes legislation (SSMA 1996 and SSMR 2010), there were a predetermined set of by-laws, known as model by-laws, for the various types of Strata Schemes; i.e. residential, industrial, hotels, resorts, commercial, retail, mixed use and retirement villages BUT, the latest round of legislative changes (released on November 30, 2016) seems to focus just on the RESIDENTIAL side of Strata - so, until it becomes clearer regarding the other ones, I will have to leave them in limbo for the time being.  Once the model by-laws appear for the other types I will add them to this page - so sorry about that for any of you guys in one of these other types.  However, the model by-laws outlined in the old legislation (Schedules 3 through 7 - Strata Scheme Management Regulation 2010) can be used as a template to refer to as well as to compare with the by-laws registered with your strata plan (but only if it was registered AfTER 30th November 2016).  HINT: You'll need to scroll down a bit to find the different schedules in the left side panel - then just click on the one(s) you want to see.

Anyway, here's what we know about the NEW SET of Standard By-laws for RESIDENTIAL Strata schemes.

Which By-laws to use

TAKE NOTE:  Any new or amended model by-laws, passed by recent legislative changes, are not automatically applied to existing strata schemes but only to NEW schemes registered AFTER the legislative changes.  Owners Corporations may adopt the new by-laws by passing a special resolution at a general meeting.

Under current legislation, a newly-registered scheme has the choice of adopting the model by-laws (for residential strata schemes), creating its own unique by-laws or using a combination of both.  Once the scheme is in operation, the Owners Corporation may add to, repeal or amend the by-laws for the scheme via a special resolution at a general meeting.  Under the previous legislation you could add or delete by-laws and simply lodge the changes at the NSW Land Registry Services (LRS) but now, a consolidated set of by-laws has to be lodged at NSW LRS along with any changes.  AND, the latest legislation (Section 141 - Part 3 of the NSW SSMA 2015) requires that the secretary of the Owners Corporation ALWAYS hold a consolidated set of current by-laws.

IMPORTANT UPDATE to Owners Corporations - all strata schemes registered BEFORE 30th November 2016 were REQUIRED to review their by-laws BEFORE 30th November 2017.  I recommended that it would be best for the schemes affected to do a full in-depth by-law review sooner rather than later - and now that deadline has now passed - so I hope you did it.  If for some reason you didn't then get in touch with your strata manager (if you use one) or NSW Fair Trading (if you don't) to see what options you still have.

Make sure you have a copy

Every owner (and tenant) should have a full copy of the registered by-laws specific to their scheme, so they understand the rules they will be required to live by.  If you don't know the 'registered' by-laws for your scheme, you can now get a copy from the Owners Corporation's secretary OR from the Strata Manager for your scheme (if you use one that is).

If worse comes to worse - which should NOT happen these days - you could do a search at the Where Can I Find The ByLaws? section at NSW LRS to get the registered by-laws for a particular Strata Scheme.  Just keep in mind this is NOT a free service and it really should be your last resort.  Always ask your Strata Committee or Strata Manager FIRST.   However, if you DO need to use the LRS service then simply click on the link within the article that takes you to the list of approved information brokers.

If you are buying into a strata scheme, your solicitor should have obtained a copy of the registered by-laws.  If you're a tenant, the owner of the property (i.e. the landlord OR the property manager) should have given you a copy within 7 days of signing the lease.

IMPORTANT Note to Investors/landlords - if you lease out your strata property, make sure your tenants always have a copy of the latest by-laws for the scheme.  Legislation dictates that it's your responsibility a copy is received no longer than 7 days after the signing of the lease.

But be aware that by-laws can be amended, deleted and added from time to time so make sure the set of by-laws you have IS current.

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Before and After...

Ok, this is quite an involved and tricky area and thankfully, the dust HAS now settled and more detailed and accurate information regarding which model by-laws to use has come to light.  And the best and clearest I have found comes from The NSW Land Registry Services site - and, ironically, it's on the same "Where Can I Find the By-Laws?" page I mentioned just above.  So, have a look at the THAT page again as it really clears it up once and for all - and I believe it's safe to assume this info is correct as this Government Department has a vested interest in making sure it IS accurate.  All you have to know is WHEN your strata scheme was registered.

Below I have put together a cut-down version of that same info along with some additional things to look out for and the links used.

OK - here we go...

For NSW STRATA SCHEMES REGISTERED BEFORE 1st JUL 1997

If a RESIDENTIAL Strata Scheme was registered before 1st July 1997, the model by-laws in Schedule 2 of the Strata Schemes Management Regulation 2016 may be used along with any custom-written by-laws.  The generic model by-laws will automatically apply to these early schemes without the need for the Owners Corporation to register them.  These by-laws are identical to the previous Schedule 1 Model By-Laws in the previous Strata legislation, except for changing the terminology and the legislative section numbers.

Be VERY careful though ...as there may have been some common property rights (previously known as exclusive use or special privilege) by-laws registered.  Make sure you get legal advice to ensure these remain in place.

There may have also been some additions, repeals or amendments made to the model by-laws which were subsequently registered with NSW Land Registry Services (LRS).  So, as this is such a complicated area, it would be wise to obtain specific advice from a specialist strata solicitor to ensure by-laws reflect the true wishes of the Owners Corporation.

For NSW STRATA SCHEMES REGISTERED FROM 1st JUL 1997 but BEFORE 30th Nov 2016

If a Strata Scheme was registered from 1st July 1997 but before 30th Nov 2016, it may have model by-laws, custom-written by-laws or a combination of both already in place.  The by-laws adopted by or lodged with the strata scheme are as nominated on the strata plan.  If no custom by-laws are lodged with the strata plan, the appropriate model by-laws for the various types of Strata Schemes have probably been adopted and can be found via the following links:

For NSW STRATA SCHEMES REGISTERED FROM 30th Nov 2016

If a RESIDENTIAL Strata Scheme was registered on or after 30th Nov 2016, it may have model by-laws, custom-written by-laws or a combination of both in place.  If no custom by-laws are lodged with the strata plan, the appropriate model by-laws for the particular Strata Scheme type in Schedule 3 of the Strata Schemes Management Regulation 2016 can be used as an alternative.  The details of any 'registered' by-law additions, repeals or amendments can be obtained from your Strata Committee or Strata Manager (if you use one).

See Section 134 of the Strata Schemes Management Act 2015 for the 'official' wording.

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All Your By-laws MUST be consolidated 1st

The latest strata reforms (that came into effect on 30th Nov, 2016) required the Owners Corporation CONSOLIDATE all the existing By-laws for the scheme and that THAT consolidated list be REGISTERED at NSW Land Registry Services by 30th Nov, 2017 and held BY the Owners Corporation.  This obviously meant the OC MUST go through the existing set of by-laws, make any changes and delete or add any other by-laws BEFORE 30th Nov, 2017 - so I hope that's all been done.  If you haven't done this yet then I suggest you contact your strata manager or a strata lawyer and see what options you now have.

SPECIAL NOTE:  Whenever you're reviewing the by-laws, it's a good opportunity to see whether any need to be added, repealed or changed.  The Schedule 3 model by-laws have some useful by-laws relating to smoking, short-term letting, compliance with planning, children playing on common property, preservation of fire safety, change in the use of or occupation of a lot and many others.  It's definitely worth going through these carefully when you're reviewing your by-laws.  But, ALWAYS get specific legal advice from a strata solicitor to ensure the by-laws reflect the real needs of the Owners Corporation's particular circumstances.

Also watch out for any previously registered Common Property Rights (previously known as exclusive use or special privilege) by-laws and make sure they don't get overlooked in the process.

There's even a NEW form to assist in all this - the Consolidation/Change of By-Laws form.

Creating New By-laws

Once a strata plan is registered, then the By-Laws for the scheme must be produced.   Usually, especially with schemes today, the standard set of by-laws (i.e the model by-laws) are used as the starting point until more specific by-laws can be discussed at a general meeting.  Many times the model by-laws are used and no changes or additions are made however, in lots of other cases, new more specific by-laws are drafted to cover all sorts of weird and wonderful things.

The general rule of thumb is to get any new by-laws drawn up by a strata specific lawyer to ensure that the by-law actually does what it's supposed to do and that there are no 'legal' loop holes hidden in the wording.  While this is not at all mandatory, it's something that should be seriously considered as the 'wise thing to do'.   The major downside is that having a lawyer do your by-law means a cost to the Owners Corporation but, hey, better safe than sorry - right?

Anyway, NSW Land Registry Services (NSW LRS) came up with How is a New By-Law Created? so make sure you at least have a look at this before heading into the minefield.  It should be noted that there is no mention in this article of using a strata lawyer to create a by-law as this article deals with what happens AFTER it goes to NSW LRS.

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Amending, adding or repealing by-laws

In simple terms, all by-laws can be amended or repealed and new ones added by the Owners Corporation at a general meeting via a special resolution.  Section 141 of the Strata Schemes Management Act 2015 deals with the procedure for changing by-laws.

Something everyone should be aware of: Previously changes to, the creation of or the cancellation of by-laws had a time-limit for registration of 2 years AFTER the resolution was passed at a general meeting but NOW that time limit is just 6 months.  The shorter timeframe is effectively to protect purchasers from being "caught out" by old unregistered by-laws that suddenly come into effect.  This change now pretty much forces the Owners Corporation (or the Strata Manager - if one is being used) to get their act together and register the by-law(s) as soon as possible AFTER the General Meeting.  Of course, depending on when the property is purchased, it can still mean prospective buyers can be caught out but the chances are greatly minimised.  The Section 184 certificate must provide particulars of any by-laws made by the Owners Corporation, within the 6-month period BEFORE the date of the certificate, but NOT lodged at NSW Land Registry Services at the date of the certificate.

It can be tricky...

As the actual wording in a by-law (along with the way it's phrased) can mean the difference between compliance and non-compliance, as well as the ability of the Owners Corporation to enforce the by-law, it's strongly advised to have a specialist strata lawyer draft up any new by-laws or any amendments to existing by-laws to avoid any ambiguities.  Yes, I realise that will cost the scheme (and/or the lot owner) some money BUT, it's very, very important to make sure the by-law is expressed as clearly and as correctly as possible - and lawyers are good at that.

***TAKE SPECIAL NOTE***
If the by-law is a Common Property Rights by-law or an approval for renovations, involving YOUR lot, it's best to make sure this is done correctly from the start so you don't have ANY issues when you go to sell your lot.  Always better to be safe than sorry IMO.

Additional information on amending, adding or repealing by-laws

Below are a few links to information that details the conditions, limitations, restrictions, forms and other requirements for adding or changing by-laws.

NSW Land Registry Services links

Fair Trading By-law links

Restrictions on By-laws

There are a few restrictions for by-laws and the legislation mentions the words "harsh, unconscionable and oppressive" which seems to be the key point here, along with something about children and assistance animals.  It also touches on Community Management and Precinct Management as well as the Initial Period.  So I suggest you have a quick look.   It's not very long or too involved so don't worry.   These restrictions are covered in Section 139 and Section 140 of the NSW Strata Schemes Management Act 2015.

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Special provisions for Strata Schemes in Community Schemes

Community schemes deal with by-laws in a slightly different manner to Strata schemes so if you happen to live in a Strata Scheme that is part of a Community or Neighbourhood Scheme or you intend to buy into one, you should familiarise yourself with the Community Management Statement (CMS) of the Community Association (CA).  It should be noted that the CMS prevails over ANY by-laws of a strata scheme which forms part of a Community Association.  You can also read more about Community and Neighbourhood Schemes by following the link.

 

Enforcing By-laws

Quite often non-compliance of by-laws can be due to a simple misunderstanding or ignorance of the by-law being broken.  In a lot of cases, many by-law breakers didn't even know there was a law for what they were or weren't doing.

For this reason, it's always best to begin with a polite letter from the Strata Committee or the Strata Manager (if you have one) outlining the breach & seeking compliance with the relevant law.  Usually this will be enough for some offenders once they realise they have actually done the wrong thing.

NSW Fair Trading supplies a great template which can either be used as a 'guide' for a compliance letter OR as THE official form that Strata Committees can issue to rogue "by-law offenders" - Notice to Comply with a By-law that complies with Section 146 of the NSW Strata Schemes Management Act 2015.

However, there are always other more 'selfish' types who really couldn't care less and it's this minority that needs 'stronger' forms of persuasion.  Luckily there are a number of avenues open to those responsible for bringing the wayward into line.  However, it's not always an easy or smooth path so read my Resolving disputes information page to learn more about the various options available to you for resolving the tougher cases.

Options for By-Law Breaches

In my "cyberspace wanderings" I happened to come across an excellent article (by Jimmy T of Flat Chat fame) called "By-law Breaches: Your Options" and it contains even more excellent info under the latest release of the NSW strata laws.  Make sure you have a look at this.

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Strata Title Terms and Jargon

If you need to know the meaning of one or more of the common terms mentioned above then have a look at the Strata Terms and Jargon Information page.

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DISCLAIMER:  All information on this website is of a general nature and is intended as a guide only.  Readers should check all information obtained from this website for accuracy from other sources and seek professional legal advice before taking any action based on any information obtained from this website.  Information on this website should not be substituted for proper legal advice.  The owners of this website will not be held responsible for any action taken as a consequence of same.

EXTERNAL SOURCES:  The owners of this website do not make any warranty or representations regarding the information, products, services provided by or qualifications of any external sources listed on this website.  Readers should make their own appropriate enquiries regarding accuracy, qualifications, licences, etc.  The owners of this website will not be responsible or liable in any way for any representations made by any external sources listed on this website.

IMPORTANT NOTE:  This website deals with strata matters in NSW, Australia only.  Legislation varies in different states and territories and in other countries.  For information pertaining to places outside of NSW, Australia please refer to the appropriate legislation for your region.

 

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