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NSW: Q&A Which ByLaws Apply to Our Strata Scheme?

The LookUpStrata Team
Review Bylaws

Lot owners are wondering about the NSW bylaws and the bylaw review. Which bylaws apply to your owners corporation? Where can you find your bylaws in NSW?

Table of Contents:

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Question: I am an owner occupier in a NSW over 55s strata complex. A lot owner recently passed away. Some of the family have moved in and they are all under 55 years old. Does this breach the building regulations?

Answer: It will depend on how the restriction is recorded.

It will depend on how the restriction is recorded. The restriction on who is permitted to reside in the lot will either be a development consent condition or could be registered as a restriction as to user or positive covenant (often this is a requirement of the DA). There may also be a by-law registered to re-inforce the development consent condition or restriction which could allow the owners corporation to enforce the restriction.

If there is no by-law, Council would be the correct entity to enforce the development consent condition or the restriction as to user. However, you should be aware that Council could issue the owner corporation with a breach of the development consent condition or restriction, even though it is not the owner corporation breaching the condition. I have seen Council do this in the past.

Section 234 of the Strata Schemes Management Act 2015 provides the following:

234 Order enforcing positive covenant

  1. The Tribunal may, on application by an authority having the benefit of a positive covenant, order an owners corporation for or owner of a lot in a strata scheme to comply with an obligation imposed by the covenant and relating to the maintenance, use, repair or insurance of a building or lot in the scheme, if the Tribunal considers that the owners corporation or owner has failed to comply with the obligation.

  2. If the authority has been refused an injunction under section 88H of the Conveyancing Act 1919, the Tribunal must not make an order to the same effect as the injunction refused.

Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in the February 2024 edition of The NSW Strata Magazine.

Question: Our complex has been under schedule 2 by-laws since 1978. Are we covered by the schedule 2 by-laws? Do we need to lodge these with the government, or are these by-laws automatically part of our complex?

Our block of 7 villas in Sydney is self managed. We have not updated our by-laws as we believe the schedule 2 by-laws are acceptable. A property manager who manages one of the villas has told us the tenants can do whatever they want because our scheme is not covered by any by-laws.

The complex was incorporated as a strata scheme in 1978 and has always operated under the schedule 2 by-laws. Are we covered by the schedule 2 by-laws? Do we need to lodge the schedule 2 by-laws with the government, or are these by-laws automatically part of our complex?

Answer: Schedule 2 by-laws automatically apply.

For strata schemes registered prior to 1 July 1997, the by-laws are set out in Schedule 2 of the Strata Schemes Management Regulation 2016 together with any special by-laws registered on the certificate of title for the common property. Schedule 2 by-laws automatically apply, but nothing prevents you from repealing them in their entirety and, for example, substituting them with those set out in Schedule 3 or some combination of both.

If you do a title search for your scheme, you will see that the above is automatically updated on the certificate of title (without you having to do anything).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the September 2023 edition of The NSW Strata Magazine.

Question: Our strata management company did not suggest we adopt the common property memorandum when we were doing the by-law reviews. Is it too late for us to adopt the memorandum now?

Common property memorandum

Answer: No, it is not too late. You can adopt the common property memorandum by way of a by-law at any general meeting of the owners corporation.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #659.

Question: Can you have a bylaw restricting residents from cooking smelly foods? Food smells in our building affect other residents in their lots and common areas. How can we control this?

Answer: A bylaw like this may be construed as harsh, oppressive and unconscionable.

You will appreciate that what are “smelly” foods is a subjective test. There is a recent case that suggests that such a bylaw may be construed as harsh, oppressive and unconscionable because such a restriction would unreasonably interfere with an occupant’s property rights, i.e. cooking being an inherent property right, however, the “smelly” cooking may be in breach of the nuisance provisions of the strata legislation should you wish to pursue the matter.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #648.

Question: When is the best time to review our by-laws? Should we wait until our AGM? Do we have to pay a fee to access a copy of the current by-laws?

Answer: The AGM may be the best time to conduct a by-law review as this meeting usually draws the highest attendance rate.

With the introduction of the Strata Schemes Management Act 2015 (NSW), a review of your by-laws was required to be carried out within 12 months of its date of effect ie within 12 months of 30 November 2016. If this was not done, you can review your by-laws at any time.

The AGM may be the best time to conduct a by-law review as this meeting usually draws the highest attendance rate. Your appointed or delegated secretary must keep an up-to-date copy of your consolidated by-laws. If, for whatever reason, this copy is unavailable from the secretary, you can obtain a copy online for a fee.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #648.

Question: The Owners Corporation demands I reinstate specific plants in a planter box on my lot. Why and do I have to comply?

I own a unit that contains a planter box as part of my lot.

The Owners Corporation demands I reinstate specific plants in the planter box. The plants which are currently in the planter box don’t interfere with common property and everything is within the boundaries of my lot.

Why would this be the case? Do I have to comply with the owners corporation’s demands?

Answer: Ask your Owners Corporation for the legal or other basis upon which they assert their right.

Often, the development consent for a building will actually specify the required types of plantings within planter boxes (for consistency throughout the building and likely to preserve the life of the waterproofing of the planter box etc) as a condition of consent, and, if this is the case, it is binding on all the common property and individual lots. There may also be Architectural Standards and/or by-laws governing the type of permitted plants. Although, in your case, it might be an arbitrary request.

Therefore, you should ask your Owners Corporation for the legal or other basis upon which they assert their right to dictate the types of plants you may have in your planter box which is wholly within your boundaries.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #637.

Question: Our by-laws require residents to accompany invitees if they use the facilities. Is this reasonable or can we introduce a bylaw that deals with guest’s behaviour rather than residents supervising guests?

We live in a large strata building with a pool and gym. Our by-laws require residents to accompany invitees if they use the facilities. While most resident comply and accompany their guests to the pool or gym, a small number of residents allow family and friends unsupervised access. This has resulted in offensive behaviour and an abuse of the pool rules. Resident are complaining.

Is there a fair and reasonable by-law to control guests without having to supervise them. Can we introduce consequences such as warnings, removal of access or other disciplinary action?

As residents, we feel this is our home. The pool forms part of our home so we should be able to allow our family to use the pool without having supervision. Obviously, if they behaved in an unreasonable way we would expect their access to be denied.

Answer: By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.

A key element to the success of any by-law is section 139 of the Strata Schemes Management Act. Particularly, section 139(1):

By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.

Note — Any such by-law may be invalidated by the Tribunal (see section 150).

Sometimes we have the benefit of precedence in Tribunal or Court cases which guide us on what is considered harsh, unconscionable or oppressive. This is not always the case.

For this reason, it is important to seek legal advice in the drafting of any by-law. Lawyers have far greater knowledge of all the case law that could impact the success of a by-law.

It is common for strata and community schemes to have by-laws that require a resident be present when their guests are using facilities. This stems from the accountability that residents ought to have in the proper use of a strata or community scheme’s facilities.

Other clauses that restrict access for improper use may be considered harsh, unconscionable or oppressive. The Tribunal generally prefers to be the one to decide if, in fact, a by-law is breached (as orders can be sought to confirm a breach of the by-laws). Therefore, restricting access on the grounds of an alleged breach of the by-laws may not meet the test.

The success of a by-law also comes from it being enforced – having by-laws that are not enforced is akin to having parking signs without Rangers issuing fines for non-compliance as a deterrent. Reliable evidence must be gathered and presented to the committee who have powers to enforce the by-laws. The committee must then take action (which, yes, unfortunately costs money like the Ranger does).

For specific advice regarding your circumstances, it is best to seek the advice of a Lawyer that specialises in strata law and can prepare a modern by-law that meets the test.

By-laws should also be reviewed regularly by Lawyers for the same reasons.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in Strata News #635.

Question: When the model strata by-laws were introduced with the new NSW strata legislation in the 2016 Act, did they automatically replace our old by-laws?

Minutes from our 2017 AGM show we voted to accept the by-laws as registered for the scheme.

When the model strata by-laws were introduced with the new NSW strata legislation in the 2016 Act, did they automatically replace our old by-laws registered in 2003?

Answer: To activate the new by-laws set out in the 2016 Regulations, you need to repeal the existing by-laws and pass the Schedule 3 model by-laws.

If a scheme was registered before 1 July 1997, the by-laws are automatically superseded to those set out in Schedule 2 of the Strata Schemes Management Regulation 2016.

Any model by-laws under the regulations of 1997, 2005 and 2010 remain in their existing form. To activate the new by-laws set out in Schedule 3 of the Strata Schemes Management Regulation 2016, you need to repeal the existing by-laws and pass the Schedule 3 model by-laws (which include new items such as smoke drift etc).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #630.

Question: When should new by-laws be placed in the foyer to notify residents? Is there a time limit on when and for how long they need to be displayed?

Answer: There is no requirement to display by-laws at a scheme.

There is no requirement to display by-laws at a scheme.

Depending on the nature of a change to by-laws (particularly one relating to onsite rules – e.g. hours of facilities) it would be wise for an owners corporation to notify the changes by-way of signage/notices to owners/occupants/agents.

It is incumbent on owners to issue tenants the current by-laws and any changes to by-laws within 14 days of the change taking effect, in accordance with S186 of the Strata Schemes Management Act.

It is our practice to notify all owners when new by-laws have been registered. It is then the requirement of the Act that they advise their lessee.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au

This post appears in Strata News #627.

Question: In our small building, two residents constantly dine and drink on the common property. The other residents are sick of the noise. Would our noise bylaw also address dining and drinking on the common property?

In our 10 unit building, we have some issues with our common property. Owners in two of the units are constantly putting blankets outside on the lawn and dining/drinking. The rest of the residents are sick of the noise and having to constantly listen to these same two residents. What can resident do and not do on common property? Would our bylaws prevent this? We have a bylaw about noise, but would this also cover dining and drinking on the common property?

Answer: By-laws strictly prohibiting dining/drinking on the common property could be passed by the Owners Corporation.

There are other model by-laws besides the noise bylaw that may be being infringed by the dining/drinking owners eg:

  1. By-law 4 Damage to lawns and plants on common property ie the owners cannot use for their own purposes any part of the common property as “a garden”;

  2. By-law 6 Behaviour of owners and occupiers ie owners and occupiers on common property must not cause offence or embarrassment to other owners or occupiers (if this is the case)

Further, by-laws strictly prohibiting dining/drinking on the common property could be passed by the Owners Corporation.

Alternatively, if the dining/drinking owners are causing “nuisance” eg enjoying the common property in a manner that unreasonably interferes with your use or enjoyment of your apartment, that is in breach of the nuisance provisions of the strata legislation.

Also, the Owners Corporation has a duty of care and the impact of the dining/drinking owners may negatively impact on the building’s insurance so this aspect should be investigated

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #622.

Question: I believe one of our bylaw is harsh, unconscionable or unreasonable. As a lot owner, should I apply to NCAT for the Tribunal to decide or should concerns first be raised to the Strata Committee or at a General Meeting?

Answer: The procedure is to make an application for an Order declaring the by-law invalid.

There is nothing to stop the owner from raising their concerns with the strata committee or at a general meeting, however, as you correctly state, the procedure is to make an application under Section 150 of the Strata Schemes Management Act 2015 (NSW)(the “Act”) for an Order declaring the by-law to be invalid (as NCAT has that jurisdiction) and compliance with the mediation requirements under the Act first.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #583.

Question: Our older building’s supposedly consolidated by-laws are inconsistent and contain old terminology. Are the outdated by-laws invalid?

I have three issues concerning By-Law consolidation.

  1. I am concerned that our By-laws have not been consolidated in a logical way to make an accessible document; and

  2. that the term ‘Council’ appears everywhere though out the document – through old and new By-Laws – where it means to refer to ‘strata committee.’ And

  3. that all our Special By-Laws to cover various apartment renovations are not attached to their associated Annexures. The Annexures have all been lumped together at the back.

My building is 26 years old. Our current, supposedly consolidated By-Laws have been brought up to date with the 2015 changes – i.e. By-Laws 12-29 inclusive have been repealed by Special By-Law 1 and the new 12-29 substituted. The old ones haven’t been actually taken out – they are there along with the new ones. The old ones have topic headings but the new ones don’t. Consequently, you need to go back and forth from the repealed to the new ones. The term ‘the Council’ represents the legally defined term ‘strata committee’ throughout the entire document. Is this legally correct or are all these By-Laws where the term ‘the Council’ is inserted invalid?

Answer: You should not have old, repealed by-laws showing in your consolidated by-laws.

What you have described regarding old/incorrect/inconsistent terminology is not uncommon, especially for older strata buildings that have changed their by-laws numerous times over the years. What invariably happens is different parties draft by-laws over time, and they end up being inconsistent and sometimes incomplete.

We would need to look at your current consolidated by-laws, however it sounds like they were not consolidated properly. You should not have old, repealed by-laws showing in your consolidated by-laws for example. Ideally your by-laws should use the current terminology in the Act. We would recommend you engage a law firm to tidy all this up for you (including by removing any by-laws which have been validly repealed) and register a clean, consolidated set of by-laws that has the correct terminology, clause numbers, headings and any annexures laid out correctly.

David Budgen By-Law Builder | Bugden Allen Graham Lawyers E: david@bagl.com.au P: 02 9199 1055

This post appears in the December 2021 edition of The NSW Strata Magazine.

What’s Happening With the NSW ByLaws Process from the 11 October 2021?

This video discusses changes to electronic land dealings coming into effect on 11 October 2021 and what these changes mean for consolidating and registering bylaws in NSW. What’s happening and what does it mean for you?

From 11 October 2021 in NSW, apart from a very small number of exceptions, every land dealing in NSW will be electronic.

The key changes affecting NSW owners corporations

  1. Certificates of Title will be no longer be considered a legal document so owners of a CT can:
    • Do nothing
    • Destroy it
    • Frame it
  2. All land dealings lodged at NSW Land Registry Services must come through a “Subscriber”. A “Subscriber” is a law firm or licenced conveyancer.

  3. Paper dealings will no longer be accepted for lodgement – no more over the counter lodgements.

  4. The video focuses on one of the most common dealings for strata “Change of by-laws”.

David steps you through the new process for submitting Change of ByLaws in NSW, whether you are a strata manager, committee with a strata manager or dealing with these changes as a self managed strata scheme.

Finally: Your by-law is NOT valid or enforceable until it is registered!

Bugden Allen Graham Lawyers has a solution to help you streamline this process. You can take a look at the ByLaw Builder platform here.

The Bugden Allen Graham Lawyers presentation referred to in the video can be downloaded here: Electronic land dealings in NSW from 11 October 2021 – a focus on CT’s and by-laws

David Budgen Bugden Allen Graham Lawyers E: david@bagl.com.au P: 02 9199 1055

This post appears in Strata News #517.

Question: If a Strata Management Company changes their name, should they also change the business name they register our by-laws under?

On review of our Schemes current By-Laws, I noticed the Strata Manager had changed their Business Name back in 2015. However, they did not change the business name they register our by-laws under.

Can you please advise if this was to be the responsibility of the Strata Manager Business to action? (At the time of business change).

And if so, can the Committee apply for a fee compensation from the Strata Manager, to now have the name changed in the By-Law?

Answer: Now that the by-law is registered, nothing turns on which legal entity or business name did so.

Now that the by-law is registered, nothing turns on which legal entity or business name did so.

It is the strata’s responsibility to change and register its business name, but that does impact on the owners corporation’s registered by-laws.

As the Owners Corporation has suffered no damage, unfortunately, there would be no compensation to be sought.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #504.

Question: What are the requirements for owning and or residing in an over 55s strata property? Does the owner or all residents need to be over 55 to live in a retirement village?

Our Strata is an over 55s or invalid property. Can a purchaser be stopped from buying a lot in a retirement village if they are unable to prove they are 55+ years old and/or permanently invalid?

Finally, what constitutes invalid under the Strata legislation?

Answer: It’s not the purchaser who needs to be over 55, it’s actually the resident.

It’s not the purchaser who needs to be over 55, it’s actually the resident. So I could actually purchase a property and have my mother who’s over 55 reside in the property. The deciding factor is on the resident as opposed to the purchaser. So the purchase can be any age, it’s just the resident that presides.

If you’re a resident and you’re 55 and you have a relative such as a dependent child, an aunt, a stepfather, etc, living with you and they are under 55, they can also occupy the property with you. The main resident needs to comply and be over 55.

What determines whether you have the disability etc, to actually reside? It would come down to medical reasons. The retirement village act would have more information about that.

For me, in short, it would be having some medical certificate to confirm that you do have a disability or a condition to ensure that you do warrant what they define as acceptable for that scheme.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #496.

Question: Can an existing Special ByLaw be amended without the legal cost of being re-written by a strata lawyer?

Can an existing Special ByLaw be amended without the legal cost of being re-written by a strata lawyer.

This bylaw outlines permission and the terms and conditions for owners to install ducted split air conditioning systems, roof ventilation, satellite dishes, security screens and pergola roofs. We would like this to be amended to also include Solar Panels.

Answer: If a bylaw is not worded correctly, or it’s not enforceable, then it’s like having no bylaw.

Anything is possible, there’s nothing to say that you need to get a lawyer to draft the bylaw. However, my very strong recommendation is that you engage a strata lawyer. I’m a big believer that these bylaws might appear to be straightforward, but they are worded in a way that lawyers are qualified to word.

Every bylaw has set out terms and conditions and definitions, and I will always define what works mean. It will mean, e.g. satellite, solar panel, etc. It might appear to be as simple as just amending that definition to include the solar panel work, but it could be other parts in that bylaw, that all connect that also need to be amended.

My strong recommendation is to have a lawyer amend the bylaw as required. Don’t try to copy bylaws for other works, and don’t try to amend bylaws.

The short answer is there’s no legal requirement where you must have a lawyer to draft the bylaw but it is highly highly recommended to have a lawyer draft the bylaw because the whole purpose of the bylaw is for you to rely on it as an Owners Corporation. If a bylaw is not worded correctly, or it’s not enforceable, then it’s like having no bylaw. You want to be in a position where you can enforce the bylaw if needed. That’s the whole purpose of having one.

ByLaw Review – Checking for harsh, unreasonable or unfair bylaws

This process gives you an opportunity to see if there were any other issues with the original bylaw. It’s a good opportunity now to amend it, especially because NSW Strata Legislation had changes back in 2015 addressing where bylaws can be harsh and unfair. The bylaw might be harsh and unfair, so it’s a good opportunity to have that reviewed.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #494.

Question: Can a majority Executive Committee vote to decide to maintain and comply with their pre-existing 2015 Strata By-laws?

  1. Is it compulsory for an existing Strata, say registered prior to July 1974, to adopt or comply with the new NSW State Strata Management Act of 2015?

  2. Can a majority Executive Committee vote to decide to maintain and comply with their pre-existing 2015 Strata By-laws?

Answer: No, this is not necessary as they were not changed.

  1. Yes. All strata schemes, regardless of when they were registered, must comply with the current legislation, being the Strata Schemes Management Act 2015.

  2. No. There are certain by-laws which apply to strata schemes which will depend on when the strata scheme was registered. Please see section 134 of the Strata Schemes Management Act 2015. A by-law can only be made, amended or repealed by way of a special resolution at a general meeting.

David Bannerman Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #453.

Question: Where can I find the by-laws that apply to our scheme?

Answer: Either you can carry out an online search or you can provide us with your strata plan number and we can conduct same for you on your behalf – the fees would be at cost approximately $25 per dealing search.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #445.

Question: Our bylaws took 12 months to register. Are they still valid or do we have to go back to a full general meeting? Also, are there penalties for not registering on time?

In November 2017 we revised our bylaws and instructed our Strata Manager to register the consolidation. We then found out that the by-laws were not registered until October 2018.

We are now looking at revising the bylaws again. We note there is one bylaw we don’t recognise and there was not passed by our AGM of 2017.

Are any of the by-laws that took 12 months to register valid or do we have to go back to a full general meeting.

Also, is are there any penalties for not registering the by-laws in the required time.

Answer: By-laws have to be registered within 6 months of being passed and if not, they are of no force and the motion needs to be passed again.

This is too complex at first blush without knowing meeting dates, etc. The owners corporation should be speaking to a solicitor.

By-laws have to be registered within 6 months of being passed and if not, they are of no force and the motion needs to be passed again. See section 141 of Strata Schemes Management Act 2015

141 Procedure for changes to by-laws

  1. An owners corporation may, in accordance with a special resolution of the owners corporation, change the by-laws of the strata scheme.

  2. A change to the by-laws of a strata scheme has no effect until–
    1. the owners corporation has lodged a notification with the Registrar-General in the manner approved by the Registrar-General, and

    2. the Registrar-General has made an appropriate recording of the notification in the folio of the Register for the common property.

  3. The secretary of the owners corporation must keep a consolidated up to date copy of the by-laws for the strata scheme.

  4. A notification cannot be lodged in the Registrar-General’s office more than 6 months after the passing of the resolution to make the by-law.

There are no penalties for not registering by-laws however the form requires the date of the resolution is put on the form and I would be surprised if by-laws could have been registered 6 months after they were passed at a meeting.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au

This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspects of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post appears in Strata News #363.

Question: How do we find the bylaws for our strata plan? We only have a copy of our strata title bylaw changes from 2012. We can only rely on information from a former committee member.

I have a copy of our strata title bylaw changes from 2012. Our Strata Plan is from 1997 but the bylaws that affect us cannot be found. We can only rely on information from a former committee member.

How do we find the bylaws for our strata plan?

Answer: You should always be able to find a copy of the registered by-laws for your scheme.

You should always be able to find a copy of the registered by-laws for your scheme.

If a consolidated set of your scheme’s by-laws have not yet been registered then the certificate of title for the common property will list all the registered changes of by-laws and which of the model by-laws or developer by-laws apply to your scheme. You then need to go through all the registered dealings to see what changes have occurred and to obtain a copy of the model by-laws that apply.

If a consolidated set of by-laws has been registered, tracking down the changes is much trickier as the previous dealings changing the by-laws will no longer be registered by dealing number on the common property title. It is not impossible but it does take a bit of investigating to see what the dealings were previously, you can do this by looking at your original contract for sale of land as all the previously registered dealings will be included, then you could search through the minutes of each general meeting to look for any changes that occurred after you bought your property.

For completeness, I would also search the files to see if the strata manager had any copies of the previously registered dealings as sometimes by-laws were passed but not registered.

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

Please note: This is not legal advice. You should seek legal advice particular to your situation.

This post appears in Strata News #344.

Have a question about the NSW bylaws, a bylaw review or something to add to the article? Leave a comment below.

Read next:

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