By-law breaches: Your options

On November 30th 2016, NSW woke up to a new set of strata laws.  Two years earlier on January 1st, 2014, a major shake-up of strata law enforcement occurred when the Consumer Trader and Tenancy Tribunal (CTTT) was absorbed into the new ‘super tribunal’ NCAT (NSW Civil and Administrative Affairs Tribunal).  This page has been updated to reflects those changes. 

As discussed frequently on this website, in NSW there are two ways to pursue miscreants in strata plans (assuming that polite requests and a quiet chat have failed). The ‘easy way’ is to issue a Notice To Comply which basically tells the naughty neighbour which by-law they are breaking and that they could be fined up to $1100 if they don’t stop doing it.

The ‘hard way’ is to get a NSW Civil and Administrative Affairs Tribunal (NCAT – formerly CTTT) order against the miscreant. If they then continue their bad behaviour, they could be fined up to $5500.  The reason for the higher fine is that they are no longer merely ignoring the by-laws of your strata plan, they’re thumbing their noses at NCAT and they really don’t like that.

NOTICES TO COMPLY

Notices to comply deal with by-law breaches only.  They are quicker and more direct but have much lower penalties. The good news is, however, the fines are now paid to the Owners Corp so they are worth pursuing.

Step 1: Notice To Comply

Firstly, you can’t do this as an individual owner or tenant. Your strata committee must agree at a meeting to issue a Notice To Comply to the owner or tenant who is in breach of by-laws, using this form.  This can also be done by a strata manager with delegated powers.

Given that many residents  – tenants and owners – claim they have never seen the by-laws, you are required to attach a copy of the by-laws or at least an extract containing the relevant by-law to the alleged miscreant.

Step 2: Application for penalty

If the owner or tenant doesn’t comply – i.e. they continue the behaviour that cause the breach in the first place –  the EC or strata manager  applies for a tribunal hearing leading to the imposition of penalty, using this form.

After filling in the rest of the form, go to Section 4, which asks you to state what you want under which strata section and you write “Section 147. To impose pecuniary (civil) penalty for contravention of a by-law”. Many forms are multi-purpose with detailed explanations of which sections to use printed on the back.

Step 3: Tribunal

An NCAT hearing on the matter is held in person before a Member who determines if fines of up to $1100 are to be imposed. This factsheet describes how NCAT Hearings work.  Any fines imposed are now paid to the Owners Corporation and are considered a debt.

NCAT ORDERS

NCAT orders deal with by-law breaches (as do Notices To Comply) but they also take in strata Act breaches and internal disputes.   This longer process – which can take up to three months, if not more – carries potentially higher penalties and is described in full HERE. Meanwhile. here is a step by step guide to getting an NCAT Order.

Step 1: Application

Executive committee, strata manager, owner or tenant applies to Fair Trading for mediation to resolve a dispute over by-law or strata law breaches, using this form .  NB: Tenants can also apply for an order to compel their landlords to take action on their behalf (this is less expensive than pursuing the complaint themselves). Tenants would use THIS form to compel landlords to fulfil their obligations (probably under one of the many clauses in Section 187(1) of the Residential Tenancies Act.

Step 2: Mediation

Except for in a limited number of issues, parties must attend mediation. Matters that don’t require mediation include appointment of a compulsory strata managing agent, compensation, allocation of unit entitlements and penalty disputes such as Notices To Comply.  Otherwise, madiation is mandatory before you can go for an NCAT hearing.  The process is explained HERE. Matter may be resolved at this stage.  If not …

Step 3: Application for Adjudication

If mediation fails, the executive committee, strata manager, owner or tenant applies for adjudication using this form.

Step 4: Conciliation and Hearing

The law has changed on this, doing away with the paper adjudication that was there before as it was just an exercise in form filling and one side or another would appeal for a hearing anyway so it was just slowing things down.

Instead you will be invite to sit down and resolve the issue. If you can’t then you go to a hearing in front of a Member. This is like a court of law in so far as the Member listens to the arguments from both sides, examines the evidence and decides on that basis.

Once again, this factsheet describes how NCAT hearings work.

Step 5: Application for penalty

Failure to abide by an NCAT order is an offence carrying fines up to a maximum of $11,000.  You use the same form to apply for penalties to be imposed.  Go to Section 4, which asks you to state what you want under which strata section.  For instance, for a by-law breach you would write “Section 147. To impose pecuniary (civil) penalty for contravention of a by-law“.

NCAT can fine people who don’t abide by their orders up to $11,000 but the link to the page explaining how you do that is broken.

Elsewhere in Australia

As we have noted many time in these pages, strata law varies from state to state.  The more strata savvy and experienced states have fairly sophisticated (if far from perfect) complaints resolution systems while relative newcomers are trying to evolve their own ways of doing things, no doubt with one eye on local circumstances and the other on mistakes made elsewhere.

For a guide to Victoria’s complaints system go HERE.

For Queensland, click on THIS link.

You’ll find South Australia’s system explained HERE.

West Australia‘s dispute resolution process is explained, starting on page 22 of THIS DOCUMENT.

Tasmania’s dispute procedures begin on page 15 of this guide to strata living.

The ACT has its own guide HERE.

Despite the Northern Territories having one of the fastest growing strata  industries in Australia, there is no obvious place to go for advice on strata disputes.  we recommend starting HERE and seeing where that takes you.