19/02/2019 at 11:15 pm #35885
Hello, My immediate neighbour is a heavy smoker and despite the new smoking By Law being introduced at the AGM in May 2018 prohibiting smoking on common property and balconies, (and smoke drift into other people’s units, i.e. mine) the resident persists in smoking. I have asked the SC several times to send a Notice to Comply to the resident but one committee member apparently came up with the idea that there need to be TWO complainants to the By Law breach before they will take any action, which other members have agreed to. This seems to put me at a real disadvantage while the person breaching the By Law continues to ignore it. Because of the configuration of the block, I am the main person affected by the smoke so there are no other residents affected. Is this 2 complainants idea legal? I thought any breach of a By Law should be followed up, whether 1 complainant or 10? I don’t think a lot of other residents are aware of this – should this be something decided on at an AGM by all owners, like the By Laws themselves are as it seems like an amendment to the By Law the majority agreed on?
20/02/2019 at 12:46 am #35911
Your committee and strata manager are having a lend of you. You only require ONE complaint or plaintiff. You might want to point them in the direction of Section 232(2) of the strata Act which deals with Owners Corporations refusing to do their job.
20/02/2019 at 3:55 pm #35933
Yes it very much feels like that to me. I will suggest they familiarise themselves with that part of the Act. Thanks very much.
16/03/2019 at 10:36 am #36427
(1) An owners corporation for a strata scheme may give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.
‘May’ is a discretionary term so the OC can argue that they are not compelled by the legislation to give a notice.
Case law on this matter is a little thin but ALLEN v STRATA PLAN 54664  NSWDC 217 implies the OC needs to take steps to actively enforce the by-laws. It will not be enough to simply have a by-law registered on title. The Owners Corporation and Strata Committee must actually take active steps to ensure that the by-laws are complied with.
AND one reported NCAT matter says:
The circumstances in which the management structure may not be functioning or functioning satisfactorily include where the relevant level of management;
- Fails to exercise power or make a decision to prevent a contravention by lot owners and occupiers of their obligations under the Act, including breaches of by-laws
Luong v Owners Corporation SP 87671 and Telmet Ventures Pty Ltd  NSWCATCD 105
So even though the OC is not compelled by the wording of the legislation (s 146 (1)) to send a NTC it appears it is arguable that the case law suggests it is a function of the OC/SC to actively enforce the by laws.
If you need to go to NCAT to seek enforcement cite the above cases as they will assist your application.
20/02/2019 at 10:01 am #35925
Similar issue to the above – is it up to the Strata Committee to decide on whether there is a by-law breach and take further action? I have complained to the Strata Manager about an owner storing items on common property (https://www.flat-chat.com.au/topic/storing-pot-plants-and-furniture-on-common-property/) but she has referred it to the Strata Committee and said she can not issue a breach notice unless the Strata Committee first approves, and you guessed it the offending owner is on the Strata Committee.
We have the standard by-laws covering “Obstruction to Common” property and “Damage to Common Property”
20/02/2019 at 1:15 pm #35931
You should have a copy, or get one, of your own (live-)by-laws, read it and find the exact point that you feel is being breached, seek a bit of confirmation from someone who can confirm that it is, then write to the committee advising them that the complex’s by-law (quote it) is being broken and then it’s up to them (as per the Act or other legislative obligation) to please address on everyone’s – not you specifically, behalf and have this corrected. It might also be worth adding reasons why this impacts you, and what you intend to do and when should things not be corrected in whatever time frame you reasonably suggest. Most things get taken more seriously if you get your head around all your options and present a proper way forward to your Committee, and if they don’t do their job you are more ready for outside action should it come to that. Good luck with it all.
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