WA: Q&A Complying with Bylaws Breaches – Serving Written Notices

These Q&As from WA Lot Owners is about complying with bylaw breaches.

Table of Contents:

• QUESTION: Does Section 112 of the Strata Titles Act 1985 impose a mandatory duty on a strata company to enforce scheme by-laws?
• QUESTION: Residents have reported various noise complaints to the strata council over the past year. No action has been taken. Is the strata company legally obliged to enforce by-laws?
• QUESTION: An owner is parking on common property and breaching our by-laws. Can we take photos of the offending vehicle as evidence?
• QUESTION: Can a lot owner be fined for a first time breach notice? Due to the outstanding fine, the strata company has also refused the request for a new fob.
• QUESTION: I’ve been served a by-law breach for building a small structure on my survey strata lot eight years ago. Is it too late for any enforceable action? Is the breach notice valid?
• QUESTION: Some of the owners on the strata council are breaching by-laws and not enforcing them. Can an owner serve a by-law breach notice to a council of owners member for not complying with a by-law?
• QUESTION: We have a number of tenants who have been served bylaw breach notices but our Strata Managers say we can’t take them to SAT because our Strata Company does not have a Council of Owners to instruct Strata Management to take action. What action can I take as a lot owner to get Strata to act on the breach notices?
• QUESTION: Is it within the power of the council of owners to serve a breach notice stating the children of an alleged offender are not permitted to use the pool for 6 months?
• QUESTION: Are there any new bylaws or parts of the legislation which protect my right as a homeowner in circumstances where other residents do not respect my property or right to peace and quiet?
• QUESTION: Is the strata manager responsible for tenants and owners complying with the strata bylaws?

Question: Does Section 112 of the Strata Titles Act 1985 impose a mandatory duty on a strata company to enforce scheme by-laws?

Answer: A strata company may decide not to breach.

Section 112 is as follows:

A strata company has the function of complying with the scheme by-laws and enforcing compliance with those by-laws by others to whom they apply

The important working is “has the function”, not “must” or similar.

A strata company may decide not to breach, i.e., the by-law is contentious or a one-off circumstance that could easily be prevented with a nicely worded email. In such instances, it is not uncommon for breaches of the by-laws to be investigated and an alternative solution considered before a breach is issued.

SVN | Strata
SVN Perth
E: info@svnperth.com.au
P: 08 9427 7955

This post appears in Strata News #696.

Question: Residents have reported various noise complaints to the strata council over the past year. No action has been taken. Is the strata company legally obliged to enforce by-laws?

I am a member of the strata council. Three of the seven council members live at the property. Residents have reported various noise complaints to the strata council over the past year. Complaints vary from noisy neighbours to new owners renovating without approval.

There is no council consensus on how to deal with complaints, so nothing has been done. The council have not advised the strata manager of the noise complaints. Two non-resident council members dismissed complaints and thought noise should be sorted out between residents before the council stepped in. Two other non-resident members have never responded to emails.

The complainants have spoken to their neighbours to no avail and are now requesting help from the council or the strata manager. Is the strata company legally obliged to enforce by-laws? What is the next step if the council is not prepared to take action? Can members be held to account for not doing the job they volunteered for and were elected to do? I want to raise it at the AGM so the council’s responsibilities are clarified and action is taken.

Answer: If a legitimate complaint has been made to the strata company, it may be deemed a breach of by-laws, which can be managed by the strata company but does not have to be.

What are the Council of the Strata Company obligations under the Strata Titles Act 1985?

A complaint is an objection to something that is unfair, unacceptable, or otherwise not up to normal standard however, what is seen as “normal” or “reasonable and fair” is subjective and can vary from person to person.

For that reason, it is important for Strata Companies to ensure that when accepting complaints against owners or residents, they are being objective so that any notice of breach of by-laws is not seen as vexatious if escalated to the State Administrative Tribunal (SAT).

If a legitimate complaint has been made to the Strata Company, it may be deemed a breach of by-laws which can be managed by the Strata Company, but does not have to be.

Saying that, Councillors also need to consider the obligations set out in Sections 135 – 137.

Section 135 (1) notes that the functions of a Strata Company, subject to the act and any restrictions imposed or direction given by ordinary resolution, are to be performed by the Council of the Strata Company.

Section 135 (2) states that the Council of a Strata Company must perform its functions in accordance with the Act and the scheme by-laws.

Section 137 (2) notes that a Council member must exercise the degree of care and diligence in the performance of the functions as a Council member or Officer of the Strata Company, that a reasonable person in the person’s position and circumstance of the Strata Company would reasonably be expected to exercise and; not make improper use of the person’s position to cause determent to the Strata Company.

I note you mention your Council make decisions by consensus (general agreement among all parties). It is important to highlight that as a general rule and based on Schedule 1 By-law 8 (1) of the default by-laws, the Council of the Strata Company must determine all matters by a simple majority vote.

Unless scheme specific by-laws provide for an alternative method of making a decision (i.e. unanimous) then breaches can be issued based on majority.

What recourse do Owners have if they are not getting what they want from the Council of the Strata Company?

The Councillors who believe the matter needs to be sorted out by the individuals are correct in the sense that Section 47 (1) stipulates that the Strata Company may enforce the by-laws by giving written notice of a breach (breach of by-laws notice) and/or apply to SAT for an order enforcing the by-laws. However, Section 47(3) allows for the owner of a lot, a mortgagee of a lot or an occupier of a lot to apply to the Tribunal for enforcement of scheme by-laws without requiring the Strata Company to take any action.

Saying that, Section 47(4) notes an application can only be under subsection 3 on certain grounds.

To ensure a harmonious community, we would be hesitant to advise that a matter is taken to SAT without notice (although possible) or if there was no evidence and/or records of consistent and ongoing incidents. We would suggest that evidence and records are kept streamlined.

Communication and discussion around the scheme expectations and by-laws is always a good idea, however it is generally best to communicate these to all Owners and Residents and note the Annual General Meeting may not be the best forum for this discussion.

Some tips on managing Councillor conduct:

• Circulate a letter to Owners with the AGM notice and/or separately explaining the role and responsibilities of a Councillor and suggesting all Owners look at nominating
• Accept a code of conduct document as part of your first Council meeting
• Have regular Council meetings
• Elect an appropriate number of Councillors for your scheme
• Respect and accept that not everyone will agree every time and look at alternative options to solve contentious matters

Tips for managing conduct at the complex:

• Regularly circulate house rules, that are in line with your scheme specific by-laws so everyone is aware of their responsibilities as residents
• Issue a notice that outlines the scheme complaints procedure so that a streamlined process is followed
• Get to know your neighbours, so that harmonious community living is encouraged
• Take a consistent approach when managing conduct challenges that arise

Examples of particulars:

Notice of breach (Section 47 (2))

• Specify the particular scheme by-law that is alleged to have been contravened; and
• Specify the particular facts relied on as evidence of the contravention; and
• Specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by-law and;
• Contain an explanation of the effect of section 47 in the terms set out in the regulations

Complaint details

• Lot/Unit Number
• What has occurred?
• Time and date of incident
• Location of incident
• Evidence (i.e.. Reference picture of vehicle(s), police report numbers)

It is also worth noting that residents must adhere to local shire requirements and the Environmental Protection (Noise) regulations 1997. They can also assist in resolving disputes, especially when it relates to a commercial property or issues related to construction/renovation works.

ESM Strata
E: mchurstain@esmstrata.com.au
P: 08 9362 1166

This post appears in Strata News #691.

Question: An owner is parking on common property and breaching our by-laws. Can we take photos of the offending vehicle as evidence?

Answer: Without adequate proof that a by-law has been breached, it can very easily be contested as hearsay. If possible, photographic proof should be obtained as this can prove that the breach did, in fact, occur.

SVN | Strata
SVN Perth
E: info@svnperth.com.au
P: 08 9427 7955

This post appears in Strata News #689.

Question: Can a lot owner be fined for a first time breach notice? Due to the outstanding fine, the strata company has also refused the request for a new fob.

My daughter owns an apartment. A few months ago, she celebrated her 30th birthday with 15 guests at the apartment. They ensured they were inside the unit with doors shut by midnight.

A week after the party, she received a noise by-law breach notice with a $150 fine. This was their first breach notice.

My daughter questioned the fairness of the fine and the breach for a first offence. She has not received a response.

When she applied for a replacement fob and key, she was told they couldn’t get another fob or key due to the outstanding fine.

Is the fine valid? Should a lot owner’s request for a replacement fob and key be refused, essentially interfering with access to their home?

Answer: The Act does not provide for a penalty to be applied by a strata company.

Section 47 of the Strata Titles Act 1985 deals with the enforcement of scheme by-laws. Section 47(5) provides for a penalty to be applied by the State Administrative Tribunal if the Tribunal is satisfied that a person has contravened the scheme by-laws. The Act does not provide for a penalty to be applied by a strata company. The strata company would have to apply to the State Administrative Tribunal for any penalty to be applied.

The Tribunal’s power to impose a penalty is subject to the following conditions:

1. a penalty must not be imposed on the strata company;
2. a penalty may only be imposed if the Tribunal is satisfied that the breach is serious enough or the breach has occurred on 3 separate occasions and breach notice in accordance with the Act has been given.
3. the penalty must not exceed an amount fixed by the regulations;
4. a daily penalty may be imposed for a continuing contravention only if that is authorised by the regulations

At this time, regulation 58 provides for a maximum penalty that may be applied by the tribunal of $2000

Often, the strata company may incur a cost associated with the preparation of a breach notice. Should your strata company have in place a cost recovery by-law, it is possible that the strata company could recover the cost for the preparation of the breach notice from the responsible lot.

It is reasonable for the strata company to control and manage access to the building and common property for the benefit of all lot proprietors. My opinion is that it would be unreasonable for the strata company to prevent access to the common property / withhold issuing of access devices on the basis of an unpaid penalty issued for a breach of by-law. My opinion is based on the strata company not having lawful authority to impose a penalty for a breach of by-law and not having a valid reason to restrict access.

Luke Downie
Realmark
E: ldownie@realmark.com.au
P: 08 9328 0999

This post appears in the November 2023 edition of The WA Strata Magazine.

Question: I’ve been served a by-law breach for building a small structure on my survey strata lot eight years ago. Is it too late for any enforceable action? Is the breach notice valid?

What is the time limit on a breach notice issued for an alleged by-law breach?

My strata council claims I committed a by-law breach well over eight years ago by building a small structure on my survey strata lot.

Until recently, no objection has been made. Is it too late for any enforceable action? Is the breach notice valid?

Answer: It was a breach eight years ago, but it continues to be a breach today.

If the breach consists of a structural alteration on your lot, the breach of the by-law is likely a continuing breach. It was a breach eight years ago, but it continues to be a breach today. The six-year period is counted from today because you are in breach of the by-law today, and the breach notice would not be out of time.

It is different from a breach of a by-law concerning excessive noise that you breached eight years ago at your 2014 New Year’s Eve party. It would be too late for your strata company to act on that breach today. It was a once off breach and not a continuing breach.

However, the fact that your strata company has done nothing about the breach for eight years may provide you with other defences against a breach notice.

In JTA Le Roux and The Owners of Bunker Bay Resort Strata Scheme [2023] WASAT 13 an owner made structural alterations to their lot in breach of a by-law requiring that the residence be constructed according to plans approved by the strata company. The owner applied to the State Administrative Tribunal for an order that the strata company must be taken to have approved the structural alteration with a resolution without dissent and was successful on the facts in that case.

You may also have other defences, but it is difficult to deal with them without knowing the nature of the by-law breach, the wording of the by-law and the relevant history of the matter over the past eight years.

Eduard Ferreira
Douglas Cheveralls Lawyers
E: eduard@dclawyers.com.au
P: 08 9380 9288

This post appears in the November 2023 edition of The WA Strata Magazine.

Question: Some of the owners on the strata council are breaching by-laws and not enforcing them. Can an owner serve a by-law breach notice to a council of owners member for not complying with a by-law?

Answer: The Act notes that the strata company has the role of performing the function of enforcing, and this action needs to be taken by the strata company, which is represented by the council of owners.

Section 112 of the Strata Titles Act 1985 notes:

112. Compliance with scheme by-laws

A strata company has the function of complying with the scheme by-laws and enforcing compliance with those by-laws by others to whom they apply.

The Act notes that the strata company has the role of performing the function of enforcing, and this action needs to be taken by the strata company, which is represented by the council of owners. A majority of the council of owners would need to agree, and then they or the strata manager issue the breach, as noted in Schedule 1 Governance By-laws that:

4 . Constitution of council

1. The powers and duties of the strata company must, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the council of the strata company…

Moreover, the council of owners must act in good faith. If a council of owners member breaches a by-law, this matter should be brought to their attention. They must then vote in a manner that prioritises the strata company’s interests over their own to avoid potential liability.

Jamie Horner
Empire Estate Agents
E: JHorner@empireestateagents.com
P: (08) 9262 0400

This post appears in Strata News #667.

Question: We have a number of tenants who have been served bylaw breach notices but our Strata Managers say we can’t take them to SAT because our Strata Company does not have a Council of Owners to instruct Strata Management to take action. What action can I take as a lot owner to get Strata to act on the breach notices?

Answer: As an Owner, you can still make an Application to the SAT but I would suggest getting legal advice.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #583.

Question: Is it within the power of the council of owners to serve a breach notice stating the children of an alleged offender are not permitted to use the pool for 6 months?

If a breach notice is issued and states that the children of the alleged offender are not permitted to use the pool for 6 months, is this within the power of the council of owners?In this instance, the children were in no way associated with the alleged breach. I assume it is intended as an indirect penalty to the alleged offender.

Answer: The strata company has a duty to be fair and reasonable to all residents.

This inquiry brings up a number of technical issues about the strata company’s responsibilities.

I would refer to section 119 of the STA (Strata Company Procedures);

119 Objectives

1. In performing its functions, a strata company is to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme —
   1. unfairly prejudicial to or discriminatory against a person; or
   2. oppressive or unreasonable.

2. In achieving that objective, a strata company —
   
   1. must take into account any failure of a person to act consistently with this Act or the scheme by-laws; and
   2. must consider the merits of any proposal put to it and the options that are reasonably available in any particular circumstances; and
   3. must be aware that —
      
      1. a resolution or other conduct may be overturned for failure to meet that objective despite the fact that it reflects the will of the majority of members of the strata company as expressed through the exercise of their voting powers; and
      2. the fact that a person has chosen to become the owner of a lot does not prevent the person challenging the performance of a function for failure to meet that objective.

This section requires the strata company to act fairly to all residents. The strata company must not be unfairly prejudicial, discriminatory, oppressive or unreasonable. For every decision made the strata council should be able to back it up with their reasons for coming to that decision.

83. Use and enjoyment – (General)

The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.

Section 83 is one of the new sections in the STA which was formerly part of the Schedule 1 By-law 1(2) which has since been deleted. Each owner is entitled to use and enjoy the common property without that use being unreasonably interfered with.

This brings us to section 112 where the strata company is responsible for ensuring compliance and enforcement of the by-laws.

112. Compliance with scheme by-laws – (Miscellaneous Powers)

A strata company has the function of complying with the scheme by-laws and enforcing compliance with those by-laws by others to whom they apply.

If it can be established that there was a clear breach of a by-law, then the following process is required to be followed by issuing a “written notice” otherwise commonly known as a breach notice as identified in section 47 below.

47. Enforcement of scheme by-laws – (Scheme By-Laws)

1. A strata company may —
   
   1. give a written notice to a person alleged to have contravened the scheme by-laws; or
   2. apply to the Tribunal under this section for an order enforcing scheme by-laws if —
      
      1. the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by-laws; or
      2. the person has contravened the particular scheme by-law on at least 3 separate occasions; or
      3. the person has been given notice under paragraph (a) and has contravened the notice.

2. A written notice given by a strata company to a person alleged to have contravened the scheme by-laws must —
   
   1. specify the particular scheme by-law that is alleged to have been contravened; and
   2. specify the particular facts relied on as evidence of the contravention; and
   3. specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by-law; and
   4. contain an explanation of the effect of this section in terms set out in the regulations.

In summary

• What by-law was breached?
• Is the by-law valid or enforceable?
• Is the enforcement reasonable under the conditions of section 119?
• What role did the children play in this?
• Has the “written notice” been sent in accordance with the requirements of the Act?

Please note that the former Schedule 2 by-law 5 “Children playing on common property in building” was deleted by the writers of the legislative changes as it was deemed to be discriminatory.

It is not known if the Strata Company has a Strata Manager or operates with a Volunteer Strata Manager but either position requires a knowledge of the Act.

Please refer to section 146 General duties and conflict of interest;

146. General duties and conflict of interest

1. A strata manager of a strata company —
   
   1. must at all times act honestly and in good faith in the performance of the strata manager’s functions; and
   2. must at all times exercise a reasonable degree of skill, care and diligence in the performance of the strata manager’s functions; and
   3. must have a good working knowledge of this Act;

It is not possible for me to ascertain if a breach did occur, if the written notice was warranted or if it was sent correctly; but it would appear that banning the “children” may be unreasonable.

This all serves as a reminder that “with power comes great responsibility” and the strata company has a duty to be fair and reasonable to all residents. I don’t know which movie that quote came from but it seems appropriate in this instance.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #512.

Question: Are there any new bylaws or parts of the legislation which protect my right as a homeowner in circumstances where other residents do not respect my property or right to peace and quiet?

Answer: Use of common property, schedule 2 bylaw 2, an owner or occupier of a lot must use and enjoy the common property in such a manner as not to unreasonably interfere with the use and enjoyment of the common property by other owners or occupiers of lots, or of their visitors.

Everybody’s entitled to have a right to peaceful enjoyment.

The bylaw about peaceful enjoyment has been moved to Schedule 2 as it is a conduct bylaw, not a governance bylaw. Use of common property, schedule 2 bylaw 2, an owner or occupier of a lot must use and enjoy the common property in such a manner as not to unreasonably interfere with the use and enjoyment of the common property by other owners or occupiers of lots, or of their visitors. Or not use the common property in a manner that causes a nuisance to an occupier of another lot. Owners must take all reasonable steps so that the visitors comply with the bylaws – e.g. not obstruct lawful use of the common property.

There is a provision in the bylaws. If you have a complaint, you need to inform the Strata Manager because there’s a requirement for written notice. A written notice (sometimes referred to as a breach notice) informs the offending party that they have breached a particular bylaw by doing whatever it is they did on whatever date.

The outcome of this is, if they do it again they will suffer the penalties that SAT can apply. There needs to be three of these written notices to be sent to the offending person or occupier. Tenants are also bound by these ByLaws and they could be taken to SAT, possibly with the owner of a lot, and SAT can make penalties payable.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #469.

Question: Is the strata manager responsible for tenants and owners complying with the strata bylaws?

Is the strata manager responsible for tenants and owners complying with the strata bylaws?

We have a tenant who constantly parks several vehicles on common property. The tenant’s landlord refuses to ensure that his tenant complies with very clear guidelines set out in the bylaws. The strata manager suggest that it is the lot owner’s responsibility to take the tenant and/or landlord to SAT! Is this not the strata manager’s responsibility?

Answer: Firstly the strata manager and the strata company are not responsible for compliance by the tenant. That responsibility rests with the lot owner and/or their property manager.

Firstly the strata manager and the strata company are not responsible for compliance by the tenant. That responsibility rests with the lot owner and/or their property manager. The strata company has a relationship with the lot owner, not the tenant.

The answer to the second part of your question is yes, any owner can refer the matter to the SAT. From your comments, the owner in question is not complying with the by-laws and as such is contriving the by-laws. So too is his tenant.

I would suggest the strata manager and the council of owners work together to issue the required contravention notices and as soon as practical refer the matter to the SAT. The owners who are concerned about this would need to provide the necessary evidence, i.e. dates, photos as this will be required if it goes to SAT.

Under the act, it is the responsibility of the strata company to manage, maintain and control the common property and that role is taken on by the council of owners.

Also, if any application is made to the SAT I would suggest that the tenant is included in that application provided their details are known. There is a provision under the act for the strata roll to have tenant details, however it’s not mandatory, only if the owner has provided the information.

Brian Rulyancich
StrataTAC
T: 0428 970 067
E: strata@stratatac.com.au

This post appears in the December 2020 edition of The WA Strata Magazine.

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