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By-law breaches: New links for our new-ish laws

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The “new” strata laws in NSW came into effect almost five years ago in 2016. The old CTTT became the “new” NCAT two years prior to that. Since then, at least two states have significantly updated their strata laws to reflect how we live in strata.

Back in 2017 we posted links to every state’s strata dispute process that we could find.  Inevitably, many if not most of them have changed and, the original online links no longer work. So here they are, revised, renewed and updated (thanks to an alert from a Flatchatter).

If you find any broken or outdate links, inaccuracies or omissions, please let us know and we’ll fix them. 

JimmyT, August 2021

As discussed frequently on this website, in NSW there are two ways for strata committees 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. So here are the two processes.  Individuals taking complaints against their owners corporation, or other owners or residents (when the strata committee has declined to act), should go straight to the section on NCAT Orders.

BY-LAW BREACHES

Notices to comply, in NSW, 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 which is sent 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  can apply for a tribunal hearing leading to the imposition of penalty, using this form.

NB At time of writing the link to the Strata Schemes Fact sheet on the NCAT form is broken.  You can use this link instead.

The following is a direct quote from the NSW Fair Trading website.

If the Tribunal believes there has been a breach of a by-law and the notice was given validly, they can issue a penalty of up to $1,100. If the Tribunal has already fined the owner or resident within the last 12 months for a breach of the same by-law, the penalty imposed by the Tribunal can double to a maximum of $2,200. In this case, the owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine.

The owners corporation can apply to the NSW Civil and Administrative Tribunal if a notice to comply has been issued and the conduct continues. If the Tribunal believes that there has been a breach of a by-law and the notice was given validly, they can issue a penalty of up to $1,100. If the Tribunal has already fined the owner or occupier within the last 12 months for a breach of the same by-law, the penalty imposed by the Tribunal can double to a maximum of $2,200. In this case, the owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine.

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 but you will find detailed explanations of which sections to use printed on this fact sheet.

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 factsheetdescribes 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: Who can do what

Before a strata committee, strata manager, owner or tenant can apply to NCAT for orders to resolve a dispute, except in a limited number of scenarios, they must first apply to Fair Trading for mediation.  Applications can now be made online by going to this web page.

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 in dispute with their landlords would start with this page which also offers a portal for online applications.

Step 2: Mediation

Except for in a limited number of issues, parties making a complaint to NCAT must first attend mediation (although the respondents don’t have to). 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, mediation is mandatory before you can go for an NCAT hearing (but it’s free).  The process is explained in detail HERE. The matter may be resolved at this stage.  If not …

Step 3: Application for a Tribunal Hearing

If mediation fails, the executive committee, strata manager, owner or tenant can apply for an NCAT Hearing adjudication.  Go to this page for infomation and advice on how to apply.

At the Tribunal, 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 and this factsheet explains which section of the Act should be cited in the request for orders.

Step 4: 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 process as above to apply for penalties to be imposed.  Go to the section which asks you to state what you require, under which strata section, referring to this form again.

NB: The money paid for by-law breach penalties goes into strata scheme coffers.  However, if the accused owners applies for costs and wins, the strata scheme must raise the legal fees though a special levy on everyone except the winning owner.

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 strata laws changed radically in May 2020. You’ll find a guide to living in strata in WA HERE.

The official guide to strata living in Tasmania was last updated in 2008.  Probably better to start at this web page for general information and this one for pursuing a dispute. 

The ACT has also updated its strata laws. This page is a good place to start if you are involved in a dispute.

Despite the Northern Territory 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.

Again, if any of these links are broken or inappropriate, please let us know on mail@flat-chat.com.au. And If you enjoyed reading this post or found it helpful, please share it with interested friends using the social media buttons below. Thanks.

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