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We are a block of 12 units. One member of the Strata Committee is breaking a by-law by parking on Common Property. I have asked him to stop but he has ignored my requests.
Our Strata Manager says it is a ‘one on one’ situation and in order to have the by-law enforced I will need to get a majority of the Strata Committee to agree to send the offending committee member a ‘Notice to comply with a by-law’. It is unlikely that we will get a majority to do that.
My questions are,
1. Is a Strata Committee member legally obliged to observe a building’s by laws?
2. Are all Strata Committee members legally obliged to ensure a building’s by-laws are enforced while they are sitting Committee members?
If the by laws of a building are legally binding (and are so black and white, ie By law 2 states No Parking on Common Property is allowed at any time) why is it so difficult to get them enforced?
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With so few units, it seem likely to me that you could bypass the committee. If you have enough other owners who are annoyed by the parking matter, you could between you require the committee to call a general meeting in order to put a motion directing the committee to issue a notice to comply.
Since it would be clear that such a resolution would pass since you have the numbers and the resolution would compel the committee to act, it should be easy to make it clear to the wavering members that it would be easier to just support a resolution by the committee to issue a notice to comply without all the rest of the bother.
On the other hand, if it become clear that few if any of the other owners are actually all that bothered, perhaps it is not worth a fight.
Q1. There is s 135 of the NSW “Strata Act” which in effect says the by-laws apply to the owners. So in a context the owners are legally obliged to observe them.
Probably better to say there are potential consequence for not observing the by-laws.
So, the by-laws are applicable to the committee members (assuming they are owners) and there can be consequences for breaking them. It might be via a notice to comply with a subsequent application to NCAT for a penalty if compliance is not the result. The fine money going to the OC.
There is the option to just go straight to NCAT and seek an order for the owner to be restrained from the non compliance. That application can be made by the owners corporation OR just an owner against another owner and then there is when the committee members are breaking the by-laws which is grounds to have them removed from the committee under s 238.s 238 (2) of the SSM Act says “(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme,I feel if the SC member is a problem then ‘go for the throat’ and make application for mediation through Fair Trading, owner v owner, which is free, with a view to seeking a s 238 removal order.
That will put the wind up then.Q2. Simply no. There is no legal requirement for the SC to enforce the by-laws although NCAT Senior Member Vrabac does say the following in the Luong case
106 .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
By-laws are difficult to enforce because people are under the ‘the rule of law’ which has no real interest in the mundane petty day to day issues of the plebs. There is a process, a few options, which are slow vexing, adversarial and often unknown to the average owner.
“The offending Committee member is hardly going to agree to make up the majority and thereby impose a penalty on himself.”
It is one thing to send a notice to comply it is another to seek a penalty. The two are related in a process but are separate things.The answer to question 1 is a definite yes.
As for Q2, it’s a lot simpler than outlined above.
Section 232.1 (e) in conjuction with Section 232.2 (below) allows you to apply for orders at NCAT to compel the committee to enforce the strata scheme’s by-laws. None other than then Fair Trading Minister Victor Dominello told me himself that he made this clear in his Second Reading of the Bill.
Just apply for mediation and then pursue the owners corp/strata committee under section 232.
Oh, and tell your strata manager to sharpen up their ideas … sure, they want to keep the committee happy but it shouldn’t be at other owners’ expense. They can issue a Notice To Comply without requiring committee approval when they see a by-law is being breached.
232 Orders to settle disputes or rectify complaints(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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