This NSW article is about steps to take when a resident breaches the bylaws in a strata property.
The by-laws for a strata scheme are binding upon the owners corporation, owners and occupiers. If an owner or occupier breaches any of the strata scheme’s by-laws, the owners corporation can take steps to enforce those by-laws.
Before commencing proceedings, we recommend the owners corporation first write to the owner or occupier to advise them of the breach and ask that it stop. A copy of the by-law should be included with the letter. If the person in breach is a tenant, the letter should be sent to both the owner and the tenant (as the occupier).
Penalty orders
If the owner or occupier continues to breach the by-laws, the owners corporation may make an application to the NSW Civil and Administrative Tribunal (NCAT) for a penalty order. The process is summarised as follows:
- The owners corporation should give a notice to the owner or occupier, requiring them to comply with the by-laws pursuant to section 146 of the Strata Schemes Management Act 2015 (SSMA 2015). The notice must include a copy of the by-law in question. A separate notice should be issued for each by-law that is breached. The Notice must be in the required form. It can be downloaded from here.
- The notice cannot be given without a resolution being passed at a general meeting of the owners corporation or without an ordinary resolution of the strata committee. It should be issued by the strata committee unless the responsibility for issuing notices has been delegated to the strata managing agent.
- If the owner or occupier breaches the by-law again after a notice has been given, the owners corporation can (after a resolution to do so has been passed either at general meeting or at a strata committee meeting) apply to NCAT for a penalty order under section 147 of the SSMA 2015. This must be done within 12 months of the notice. If NCAT is satisfied that the notice was validly given and the owner or occupier has breached the by-law since the notice was given, NCAT may order that a monetary penalty of up to 10 penalty units (currently $1,100.00) be payable to the owners corporation.
- If, within 12 months of the monetary penalty being imposed, the owner or occupier breaches the same by-law again, the owners corporation may apply to NCAT for a further penalty order. A further notice need not be issued. If NCAT is satisfied that the owner or occupier has breached the by-law, NCAT may order that a monetary penalty of up to 20 penalty units (currently $2,200.00) be payable to the Owners Corporation.
In dealing with a contravention of an occupancy limit by-law, NCAT may impose a monetary penalty of up to 50 penalty units under section 147(1) and a monetary penalty of up to 100 penalty units under subsection 147(2).
An order that the owner or occupier comply with the by-laws
Alternatively, the owners corporation may apply to NCAT for an order under section 232 of the SSMA 2015 that the owner or occupier comply with the by-laws. This falls under the general power of NCAT to settle a dispute or complaint about issues including the operation, administration or management of a strata scheme. The parties will have to attempt mediation before an application is made to NCAT.
Ideally, an owners corporation, owners and occupiers should work together to resolve disputes amicably without needing to go to NCAT. This will not only save time and money, but also preserve harmony in the strata scheme.
Jasmin H.Singh & Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
This post appears in Strata News #596.
Have a question or something to add to the article? Leave a comment below.
Read next:
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.
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“The notice cannot be given without a resolution being passed at a general meeting of the owners corporation or without an ordinary resolution of the strata committee. It should be issued by the strata committee unless the responsibility for issuing notices has been delegated to the strata managing agent.”
Interesting comment particularly given it is from a ‘brief’.
Cannot is a term that denies capacity, a lack of power or ability to act according to the NSW CA (2EBR case; para 36, 37)
When it comes to NTCs the Act actually says “must not … ” and must not is not cannot.
In fact ‘must’ and ‘must not’ distill to mean ‘it’s optional’ in most of the SSM Act.
I have found at NCAT that failing to first pass a resolution to send a NTC is not fatal to the process.
The failure to first pass a resolution for two NTCs drew no comment in Sc 20/47590 (Member K Rickards – unreported). The OC even sought a penalty on the back of those NTCs. That the OCs’ case failed was due to other reasons, not the lack of compliance with the NTCs.
Hi Stephen
The following response has been provided by Allison Benson, Kerin Benson Lawyers:
Thanks for the comment and yes it is a brief comment/article. We have consistently found that unless the motions have been passed our clients run the very real risk that the particular member on the day will throw the claim out on the basis of the technicality.
I note that there NCAT ‘must not’ may been interpreted to be optional however in my experience ‘must not’ in most cases has been interpreted as non-optional and if it has not been there would be an appeal point.
Hi there,
Interesting article.
What is the process in QLD when the Body Corporate itself is breaching a bylaw?
For example: a pool pump is so noisy, the sound penetrates into some of the units at all hours of the day and night. The noise is disturbing the occupiers of those units. The noise level is 20dB above ambient noise levels, which is in breach of the EPA standard of acceptable noise, however the Body Corporate and Strata Committee refuse to take appropriate actions to remediate the problem.
In this scenario, the Body Corporate is the “Owner” of the common property and therefore the owner of where the noise is coming from, and therefore in breach of the Noise bylaw.
Thanks in advance for your reply.
Process would be different; instead of a NTC you would just go straight to mediation and then seek an order for the OC address the breach..
That is an alternative option to sending a NTC so as you are dealing with the OC being in breach then
consider – would a rational OC send itself a NTC then take itself to NCAT if it didn’t comply.
Your destiny lies outside the NTC path.
Seek an order.
Hi Richard
Todd Garsden has respondesd to your comment in this article: QLD: The golden rules of bylaw enforcement + Q&As