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WA: Q&A Strata bylaws + bylaw consolidation

The LookUpStrata Team
wa strata by-laws

This article is about the strata by-laws and the by-law consolidation or bylaw review process in Western Australia, particularly after the amendment to the WA Strata Titles Act 1985.

Table of Contents:

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Question: Our strata company is currently reviewing its by-laws. Can we have assistance developing a by-law for smoking, EV and lithium-ion battery charging and overcrowding?

Our strata company is currently reviewing its by-laws. We have a by-law for smoking, but residents continue to smoke in apartments and on their balconies, causing nuisance and hazards to health. We need a new by-law to stop smoking/vaping of tobacco and other products on the entire strata premises.

Is a by-law available for EV charging and lithium-ion battery charging? We want a by-law stating that lithium-ion battery charging can only occur outside apartments/garages and in a designated area due to fire/smoke hazards.

We also like a by-law to ensure too many people do not use apartments, e.g. eight people in a three bedroom apartment.

Are you aware of any information on these issues to assist our strata company to ensure we can formulate by-laws for these outcomes?

Answer: We would strongly recommend appointing an experienced strata lawyer to draft the proposed by-laws.

It is possible for by-laws to be drafted in relation to each of these issues. We would strongly recommend appointing an experienced strata lawyer to draft the proposed by-laws so that they are specific to the particular scheme and the issues that the scheme wants to address. This is because there are many different options for these kinds of by-laws.  A strata lawyer can also provide advice as to the type of resolution/s that would be required, which will vary depending upon the terms of the by-laws as drafted.

Carolyn Meighan Bugden Allen E: carolyn@bagl.com.au P: 08 9254 6304

This post appears in the October 2024 edition of The WA Strata Magazine.

Question: A tenant’s daughter has been staying in an over-55s complex. What can be done to stop this?

What can be done with underage people living and staying in an over-55s complex?

Some while back, a tenant’s daughter was staying at the complex. The daughter was told she could not stay at the property.

Over the past month, the daughter is back. The strata company has spoken to the daughter, but she arrives late and sleeps over every night. What can we do?

Answer: Allowing a contravention of a restricted use condition contravenes a development condition or a town planning scheme, and the local government may take action against the strata company for failing to comply.

Unfortunately, this is a common scenario which can cause significant issues for a strata company.

Generally speaking, restricted use conditions (such as minimum age requirements) are noted on a strata plan of a scheme and result from a development condition.

It is an offence under s. 82 of the Strata Titles Act 1985 (WA) for an owner or occupier of a lot in a strata titles scheme to use (or permit to be used) their lot in a manner that contravenes a restricted use condition set out on the strata plan.

There is also a risk for the strata company. Allowing a contravention of a restricted use condition contravenes a development condition or a town planning scheme, and the local government may take action against the strata company for failing to comply.

The action a strata company can take will be subject to such things as the relevant scheme by-laws, development approvals for the strata scheme and town planning schemes.

In this situation, a council should review its scheme by-laws and determine whether a contravention notice can be issued to the owner or occupant regarding the unauthorised use of the lot. The council should seek urgent legal advice to assist with issuing a contravention notice.

Proceedings may be able to be commenced in the State Administrative Tribunal (SAT) if the contravention notice is not complied with. Again, the council of a strata company in this position should urgently obtain legal advice for assistance in commencing SAT proceedings.

Jason O’Meara McWilliams Davis Lawyers E: jo@mcwilliamsdavis.com.au P: 08 9422 8910

This post appears in the June 2024 edition of The WA Strata Magazine.

Question: One owner in our small self-managed scheme has a large boat. It creates a nuisance in the scheme. Can we vote to ban boats at the next meeting?

Our strata scheme of four separate dwellings are all owner-occupied. We self-manage the scheme.

One resident brought a large boat five years ago that sits in their carport. It has irritated the other residents but has never been formally addressed at a strata meeting. Residents are sick of blocked driveways, manoeuvring in and out of the property around the larger boat, the noise of engine testing, and boat cleaning in common areas. Can the resident vote to ban boats at the next meeting? What are the rules and conditions in WA for this situation?

Answer: Dictating ‘house rules’ may not be enforceable without the backing of a valid scheme by-law.

In the first instance, we would strongly suggest the strata company seek legal advice to ensure that any rules/by-laws you implement for your scheme are valid and compliant with requirements under the Strata Titles Act 1985 (STA).

It is also important to note that a resolution of the strata company dictating ‘house rules’ may not be enforceable without the backing of a valid scheme by-law.

Section 46 of the STA provides further information regarding the invalidity of scheme by-laws.

In this circumstance, Section 46 (j) may be applicable:

46. Invalidity of scheme by-laws

Scheme by-laws are invalid as follows —

  1. to the extent that, having regard to the interests of all of the owners of lots in the strata titles scheme in the use and enjoyment of their lots and the common property —
    1. they are unfairly prejudicial to, or unfairly discriminatory against, 1 or more of the owners of lots; or

    2. they are oppressive or unreasonable.

Section 91 of the STA also notes that the strata company must ensure that it acts in the best interests of all owners.

It would also be prudent of the strata company to consider lot boundaries vs common property (i.e.. carports etc.) when assessing scheme policies for effective management.

Since the matter has not been formally addressed at a general meeting, the strata company may want to consider raising this matter with the lot owner directly as a discussion point in the first instance and, depending on the outcome of that conversation, take reasonable steps to mediate the situation thereafter.

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

This post appears in Strata News #697.

Question: Our recent AGM considered a motion to change our pet bylaw. There was confusion around the voting process and the motion did not pass. Should the vote be declared invalid and another meeting be held to decide on the motion?

Our recent AGM considered a motion to change our pet bylaw. The strata manager/chairman spoke against the motion. After some disorganised discussion, a show of hands was taken and the chairman declared the motion did not pass.

Over the following days, owners communicated they were confused by the process. Some feel the count was incorrect and may not have considered unit entitlements. Due to the confusion about the entire process, should the vote be declared invalid and another meeting be held to decide on the motion?

Answer: Changes to bylaws requires specific resolutions.

Changes to bylaws requires specific resolutions and cannot just be done via a show of hands.

The respective motions are also required to be on the meeting agenda and comply with the requirements for calling a general meeting as per the Strata Titles Act 1985.

Presuming the current bylaw is a Schedule 2 bylaw, this would require a special resolution as defined by Section 123(4) of the Strata Titles Act, so the votes need to be counted by both number of lots and unit entitlement to determine the correct outcome.

If the correct procedure was not followed, we recommend the council of owners arrange another general meeting that is convened in accordance with the requirements of the Strata Titles Act.

The Council may wish to consider seeking appropriate advice on the requirements.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

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

Question: At our AGM our registered bylaws were consolidated, voted on, and agreed to. When the consolidation took place, they were changed without a meeting and registered. Is this legal? The new bylaws are not what we voted for!

Answer: It is dependent on certain circumstances surrounding the consolidation process carried out.

The answer to your question is dependent on certain circumstances surrounding the consolidation process carried out. In short, the Act provides the steps required for a basic consolidation. This basic consolidation is not required under theStrata Titles Act 1985 to be voted on as it is a statutory requirement. Any changes additional to, or above and beyond this, would need to be taken to a general meeting to be voted on under the appropriate resolution (Resolution without dissent for Governance By-laws & Special Resolution for Conduct By-laws).

As part of the consolidation process the Strata Company must:

  1. Determine if the existing by-laws sit in the right schedule (Governance or Conduct) based on the definitions for each now given by the ACT and where necessary relocate the by-law

  2. Determine if the by-law is a valid by-law by applying Section 46 (Invalidity of By-laws). Any invalid by-laws are removed.

  3. Application of the default by-laws (Governance and Conduct) as set out in the Act.

Applying the points outlined above can be done without the need to take the changes to a vote. If there are no further changes then the consolidated by-laws can be registered on the Strata Plan.

Many Strata Companies are finding the consolidation process to be the perfect time to review their by-law needs and in some cases taking the opportunity to update by-laws that reference sections of the ACT. With the extent to which the Strata Reforms proclaimed 1 May 2020 changed the Act it is common to find section of the Act that are referenced in scheme by-laws to be out of date. These changes would be required to be presented to a general meeting and the required resolution passed before they can be included in the lodgement of a consolidated set.

I should point out that a Strata Company that has no amendments to its by-laws and only uses the default by-laws under the Act is not required to go through the consolidation process.

Once a Strata Company has lodged a consolidated set of bylaws, or a scheme using the default by-laws makes any changes to their by-laws in the future, a consolidated set of by-laws will need to be lodged each time.

Minal Kulkarni Realmark E: mkulkarni@realmark.com.au P: 08 9328 0999

This post appears in Strata News #620.

WA: Bylaw Consolidation – Now is the opportune time! | Brian Rulyancich, Stratatac – June 2022

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

Question: If a Strata Scheme adopted the Strata Titles Act 1985, Schedule 1 and Schedule 2 additional by-laws in 1991 which included by-law 8 – Cleaning of Windows, but this by-law was deleted from the ACT in 1995, is this by-law still valid to be included in the First Consolidation?

Answer: If a by-law is deleted by the Strata Titles Act, that by-law no longer exists and the strata cannot act upon as it once did prior to the by-law being deleted. As such it would not be part of any consolidation.

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

This post appears in Strata News #587.

Question: As a lot owner, I feel I own part of the common property. Residents are parking on this common property. Can I personally charge them rent for the use of this space?

I own and reside in one lot of an eight lot self-managed strata complex in WA. In our ‘Welcome to the Complex’ guidelines, the owners have asked that each unit is to limit the number of vehicles to 2 and those 2 vehicles are to be parked in their designated parking spaces, not on the common property.

One of the Unit’s tenants continue to ignore these conditions relative to both the number and where they park, so in effect, they are using my property, the common property that I pay rates on and my fees help to pay the third party insurance on, as their own personal parking bays.

As an individual, can I charge these people rent for the use of the common property. If not, what are some other solutions that I could implement?

Answer: Can an individual lot owner impose a fee for non-compliant parking on common property? In short, unfortunately no.

The lack of parking bays and allocation can cause great discord within a strata community; parking in another resident’s spot, parking on common property and blocking entry/exits.

To determine who has ‘ownership’ of any part lot parking bay, you must refer to your strata plan. If you cannot identify any parking bay clearly identified on the plan as your part lot, you do not ‘own’ the bay.

You also need to refer to any bylaws attached to your strata plan. You may well have a ‘House Rules’ or a ‘Welcome to the Complex’ document, but it has no enforceable standing unless it is registered as a bylaw on your strata plan, or directly relates to a registered bylaw.

Parking bylaws would fall under Schedule 2 Conduct bylaws, in accordance with the Strata Titles Act 1985. The standard bylaws include the following bylaw which may apply to your scheme;

1. Vehicles and parking

  1. An owner or occupier of a lot must take all reasonable steps to ensure that the owner’s or occupier’s visitors comply with the scheme by-laws relating to the parking of motor vehicles.

  2. An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the strata company.

Is the lot being managed by a Property Manager on behalf of the owner? It’s the responsibility of the owner (or Property Manager engaged to represent the lot), to ensure the occupant complies with all strata company bylaws, including parking allocation.

Can an individual lot owner impose a fee for non-compliant parking on common property? In short, unfortunately no, you cannot impose a fee yourself. Common property is shared amongst all owners, therefore any alteration to the use of common property would need to be considered by all owners and managed by the elected Council of the Strata Company.

In this case, it sounds as though the Council of the Strata Company should exercise the Strata Company’s General Duty to ‘control and manage the common property for the benefit of all the owners of lots’. This usually requires some discourse between the Council, and the offending resident, in an effort to resolve the misuse of Common Property.

If the issue cannot be rectified in good faith in the first instance between the Strata Company, the lot owner and the occupant, the Council of the Strata Company may continue to exercise their General Duty by issuing a formal Breach Notice to the owner or directly to the tenant, in accordance with Section 47 of the Act. The Council of the Strata Company may also request that the owner/Property Manager breach their tenant under Section 85 of the Residential Tenancies Act. Should this pattern of conduct continue, despite at least 3 breach notices being issued by the Strata Company, the Strata Company has the ability to have the matter heard at the State Administrative Tribunal by submitting an application to the SAT.

If the Council of the Strata Company is not active, you should try speaking directly with the occupant, owner, or property manager to have the matter resolved if possible. There are many compelling reasons why you would want to avoid litigation. Taking matters further to the SAT can be time consuming, distracting and expensive. If however, you are unable to resolve the matter amicably, we recommend seeking professional advice and potentially making an application to the State Administrative Tribunal.

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

This post appears in the April 2022 edition of The WA Strata Magazine.

Question: Our new apartment building has a blanket rule stating teenagers must not be in the pool unsupervised. My son was recently removed from the pool by a guard. Is the enforcement of this rule harsh and unreasonable?

In our newly built residential apartment block in WA there is a blanket restriction stating that a teenager needs to be at least 16 years old before being allowed to swim unsupervised in the 1.2 meter pool. My 12 years old son is the size of an adult and an excellent swimmer, possibly a better swimmer than most adults.

He was recently removed summarily from the pool by a guard for being underaged with no parent present and escorted away from the common property back to our apartment. At the time there were only 2-3 people in the pool. The guard claimed he was doing this because he was instructed to and that it was for the boy’s safety!

Are the council or owners within their rights to enforce this rule? Does this action not qualify as being too ‘harsh’ and ‘unreasonable’? Is there any way for me to stop this unreasonable application of this by-law?

Answer: A by-law requiring that children must be supervised by an adult when using the common pool is a common and valid by-law.

The strata company could create and enforce by-laws relating to use of the common property. A by-law requiring that children must be supervised by an adult when using the common pool is a common and valid by-law.

If you will dispute the circumstances that you have described, in my view, it should not focus on the validity of the by-law but on the manner in which the by-law was enforced (i.e. they should have not permitted the child to enter the pool rather than removing him that caused a scene or could have harmed the child by the manner of removing him from the pool). This way the strata company keeps with their obligations to appropriately manage the use of the common pool rather than simply reacting when breaches occur.

Rochelle Castro RC & Co Lawyers E: law@rccolawyers.com P: 1300 072 626

This post appears in the April 2022 edition of The WA Strata Magazine.

Question: Is a by-law unreasonable or oppressive if it disallows the parking of more than 1 vehicle in the bay which is part of a lot? In some instances, more than one vehicle can fit without being a nuisance to others.

Answer: Consideration must be given to the possible impact of parking two vehicles for access to other bays including turning circle and ease of entry, restriction of reasonable pedestrian access and in some cases the ability to afford the same rights to other lot proprietors.

Section 46 of the Strata Titles Act 1985 sets out when a by-law for a Strata Scheme is Invalid. Section 46 states that a by-law is invalid if:

Invalidity of scheme by-laws

  1. to the extent that there is no power to make the by-laws;

  2. to the extent that they are inconsistent with this Act or any other written law;

  3. to the extent that they are inconsistent with a restricted use condition;

  4. for a leasehold scheme — to the extent that they are inconsistent with the covenants or conditions of a strata lease over a lot in the scheme;

  5. to the extent that they purport to deny or limit the right of a member of the strata company to vote on a proposed resolution of the strata company (except as set out in this Act);

  6. to the extent that they prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing with a lot;

  7. to the extent that they purport to discharge or modify an easement or restrictive covenant;

  8. to the extent that they prohibit or restrict the keeping on a lot of an animal that is used as an assistance animal by a person with a disability who is an owner or occupier of a lot;

  9. to the extent that they prohibit or restrict the use on the parcel of an assistance animal by a person with a disability;

  10. to the extent that, having regard to the interests of all of the owners of lots in the strata titles scheme in the use and enjoyment of their lots and the common property —

    1. they are unfairly prejudicial to, or unfairly discriminatory against, 1 or more of the owners of lots; or

    2. they are oppressive or unreasonable.

It is important to consider if the car bay is part of the lot, exclusive use or simply common property. In the later two, the area is common property and the reasonability to control and manage common property to the benefit of all lot proprietors sits with the Strata Company. In this case it would be reasonable for the Strata Company to set by-laws to govern the use of these areas.

Something else to consider is that the standard car bay size which is commonly used in local government by-laws applicable to development applications in Western Australia is a minimum car bay length of 5.4m and width of 2.4m. Where there are adjacent walls or posts an additional 0.3m is added to the width. Should the area in question be any less than two times the length (tandem parking) or two times the width (side by side) then it would be more than reasonable to restrict parking to a single-vehicle. Should the area in question be sufficient in size to meet a standard of two car bays then it may be considered unreasonable to restrict parking to a single-vehicle particularly if the area in question is an external part lot.

Additionally consideration must also be given to the possible impact of parking two vehicles on access to other bays including turning circle and ease of entry, restriction of reasonable pedestrian access and in some cases the ability to afford the same rights to other lot proprietors.

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

This post appears in Strata News #524.

Question: In my WA strata, we have bylaws that reference sections of the previous act schedule 1 and 2. Do we need to revise the bylaws management statements so they refer to the new act or sections?

In my strata, we have bylaws that reference sections of the previous act schedule 1 and 2. Do we need to revise the bylaws management statements so they refer to the new act or sections? Or is it okay to maintain our bylaws even with reference to the previous versions of the Act unchanged?

Answer: As soon as you want to change any of those bylaws, the consolidation process allows you to bring forward all of the old bylaws into the new format, adopting the new standard schedule 1 and 2 bylaws.

Therein lies the problem. As soon as you want to change any of those bylaws, the consolidation process allows you to bring forward all of the old bylaws into the new format adopting the new standard schedule 1 and 2 bylaws.

The problem is that your existing bylaws may refer to bylaws that have been removed from the current schedule 1 bylaws, the governance bylaw being 11-15 that have been removed, so things that deal with voting and election of counsel, common seal, those things have been removed and incorporated as part of the Act.

The management statement might retain bylaws that deal with a quorum, which is now dealt with in the act, and the Act will supersede any bylaw that’s been created. There are penalty bylaws, and the act covers those. References to levies being under Section 36.

If you’re going to do a change, then it’s up to the strata company whether they want to go through the motions to change every bylaw that refers to a redundant section. Depending on if it’s a governance bylaw, it would require a resolution without dissent and if it was a conduct bylaw, it would need to be a special resolution because you’re actually changing the bylaw. The consolidation only applies to bylaws that are just directly brought over and renumbered in accordance with the new bylaws that are in the current version of the Act.

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

This post appears in Strata News #485.

Question: Are dogs allowed in a strata apartment complex pool area? Should we have a strata bylaw about this?

Answer: The pool area is provided as an amenity for people.

There have been a number of by-laws in the Eastern states that have already come under fire about animals in Apartment buildings.

The pool area is provided as an amenity for people.

Let us pose this example (assistance animals and guide dogs excluded) what if everybody brought their animal to the pool area, it surely bad enough that there is the odd neighbourly disagreement between owners.

There would be obvious reasons to exclude dogs:

Of course, you may say that this is no different from other owners doing the same once they have had a few sherbets.

Think of the disruption to everyone’s right to peaceful enjoyment?

This situation could have easily been avoided by not permitting any animals in the pool area in the first place.

A strata company is at liberty to register a By-law or make House Rules about the exclusion of dogs from the pool area.

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

This post appears in Strata News #465.

Question: Has anyone set up a template list of standard strata bylaws for WA? These could be a great starting point for conducting a bylaw review to reflect the latest requirements under the Act in Western Australia?

Answer: In regards to obtaining a set of standard strata bylaws for WA or bylaw templates, these are within the Strata Titles ACT.

Thanks for your enquiry regarding a set of standard strata bylaws or by-law templates and the new legislation in WA. I hope I can offer some assistance in this area to help you navigate the new legislation in regards to by-law changes and locating the information you require.

As you are already aware, the standard set of by-laws that apply to all WA strata properties have been amended under the new Strata Titles Act WA reforms, which came into effect in May last year. These are outlined within the Strata Titles Act WA itself, of which a copy can be found here: Western Australian Legislation – Strata Titles Act 1985, kindly published by the WA Govt Dept of Justice in a downloadable pdf or word document format. Alternatively, a google search brings them up straight away also. [Admin: Try our Strata Legislation page under Western Australia.]

The by-laws that used to apply to all WA strata’s prior to the reforms were known as schedule 1 and schedule 2 by-laws. Any amendments to these were lodged on the strata plan through Landgate for each scheme and were able to be obtained by requesting through Landgate for a copy, or via the strata manager of the scheme. As you are aware these have changed and are now referred to as Conduct and Governance by-laws under the new legislation. These new by-laws now apply in WA and are required to be consolidated with any existing by-laws on a strata scheme that were added or repealed on the older version. Information on this is below on the link I have provided which explains this process. Consolidation is achieved through registration with Landgate.

Guide to consolidating by-laws for strata titles schemes in Western Australia by Landgate is a handy booklet put together by Landgate which clarifies the changes, how they affect each strata and how the new by-laws being introduced into WA strata schemes are to be consolidated with any existing set a strata may have.

In regards to obtaining a set of standard strata bylaws for WA or bylaw templates, these are (as mentioned above) within the Strata Titles ACT WA. The full set of by-laws are laid out one by one for clarity. You simply need to go to pages 257 – 270 of the Act under headings “Schedule 1 – Governance by-laws ” and “Schedule 2 – Conduct by-laws” as copied below from the table of contents front section of the Strata Titles ACT WA. This is the template or more precisely, a ‘copy’ of the by-laws, that a scheme is to use since the reforms. It’s handy that you can download a word doc version of the set of standard strata bylaws for WA that will assist in consolidating with any other by-laws a scheme may have.

If your WA strata did not simply adopt the previous set of by-laws before the reforms, with add in’s or repeals, these need to be consolidated with the new set of by-laws. Legal assistance is advised when undertaking this task, as consolidated by-laws should be reviewed for checking that they are in line with the new reforms to meet the legislation requirements. Your strata manager should be able to assist with this matter. Alternatively, if a scheme had relied on the previous version of by-laws under the Strata Titles Act WA before the reforms without any changes, then this new version is simply the default set the strata scheme now rely on going forward which replaces the older set.

Standard Strata Bylaws for WA

Schedule 1 — By-laws
  1. Duties of proprietor, occupiers etc. 212

  2. Power of proprietor to decorate etc. 213

  3. Power of strata company regarding submeters 213

  4. Constitution of council 214

  5. Election of council 216

  6. Chairman, secretary and treasurer of council 218

  7. Chairman, secretary and treasurer of strata company 218

  8. Meetings of council 219

  9. Powers and duties of secretary of strata company 219

  10. Powers and duties of treasurer of strata company 220

  11. General meetings of strata company 220

  12. Proceedings at general meetings 221

  13. Restriction on moving motion or nominating candidate 223

  14. Votes of proprietors 223

  15. Common seal 224
Schedule 2 by-laws
  1. Vehicles 225

  2. Obstruction of common property 225

  3. Damage to lawns etc. on common property 225

  4. Behaviour of proprietors and occupiers 225

  5. Children playing upon common property in building 225

  6. Depositing rubbish etc. on common property 226

  7. Drying of laundry items 226

  8. Storage of inflammable liquids etc. 226

  9. Moving furniture etc. on or through common property 226

  10. Floor coverings 227

  11. Garbage disposal 227

  12. Additional duties of proprietors, occupiers etc. 227

  13. Notice of alteration to lot 228

  14. Appearance of lot 228

Kylie Nelson Eyeon Property Inspections E: kylie.nelson@eyeon.com.au P: 0401448308

This post appears in Strata News #451.

Question: In a small WA strata with 4 units do all the owners have to agree on by-laws being created? If 3 out of 4 agree, is that sufficient?

Answer: It really depends on whether you want to create a governance bylaw or a conduct bylaw.

It really depends on if it is a governance by-law or a conduct by-law you are wanting to create.

To create a governance by-law, a resolution without dissent is required and for conduct bylaws, it is a special resolution. This applies for amending or repealing bylaws also.

Other than in two lot schemes a resolution without dissent requires that 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and no vote attached to a lot in the scheme is cast against the resolution.

For a 3, 4 or 5 lot scheme a special resolution requires that 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens. To pass the votes in favour of the resolution need to equal not less than 3 for a four lot scheme such as yours and not less than 50 % of the total aggregate of the unit entitlements of the lots in the scheme.

It is important to know what constitutes a governance by-law and what constitutes a conduct by-law.

Conduct by-laws are any by-law other than a governance by-law that deals with

Governance by-laws deal with:

In a 3,4 or 5 lot scheme in WA, Governance by-laws can include by-laws that exempt the Strata Company from a designated function such as procedures of a general meeting or raising levies.

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

This post appears in Strata News #391.

ARTICLE: Strata by-law consolidation: some tips on how to approach the new rules

From 1 May 2020, a strata company that wants to make a new by-law, or amend or repeal an existing one, must consolidate all of its by-laws. This means bringing together into one document the assorted documents that may have accumulated over the years representing different by-laws and amendments.

The cost of registering consolidated by-laws with Landgate would be the same as registering one amended by-law. The aim is to encourage strata companies to update their by-laws and make them more efficient.

There is a dilemma for those strata companies which have amended, repealed or introduced a number of by-laws over the years. This is because there may be a number of different by-laws recorded in a number of different documents. It makes sense to consolidate them, but many strata lot owners might be put off by the perceived cost of engaging a lawyer to do the work. Yet consolidation provides the opportunity to review the by-laws as a whole, to see if there are any which are no longer relevant or desirable.

In the domain of strata, the by-laws are rules that all participants are bound to follow. Further, from 1 May 2020, a strata company can not only make an application to the State Administrative Tribunal for an alleged breach of a by-law, it can now seek a penalty for the breach of the by-law up to $2,000.

There is also a dilemma for those strata companies, which might not have had made any or many changes to their by-laws over the years, but are now considering amending a by-law that has been bothering them.

Do they proceed to change the one by-law and trigger the entire consolidation process?

Consolidation: a brake or a booster?

The requirement now to consolidate all of the by-laws, when seeking to amend a single by-law, could inhibit a strata company from changing their by-laws. This might be because of a fear of the expense. Even though a strata company pays no additional fee for registering its consolidated by-laws with Landgate the true cost may be strata manager and lawyers’ fees. These fees would be to review the by-laws to consolidate them and improve them.

Spending money on consolidating a strata company’s by-laws now should be viewed as an investment for the future.

Consolidation ensures a clear set of rules which is easily accessible to all strata scheme members.

One aspect of the new strata regime is creating a clearer structure to strata by-laws, including categorising them into governance and conduct by-laws. This, in turn, should lead to fewer disputes between neighbouring strata lot owners. We all know that disputes often incur substantial costs.

The new strata regime raises the standards of governance for all who live in the strata environment. Previously, inertia, outmoded thinking or inflexible personalities might have prevented a strata community from making positive changes.

Now, having to consolidate by-laws means that strata owners will have the opportunity to reflect on a common vision of the lifestyle of the strata complex. This common vision would be clearly communicated to the lot owners through the by-laws. It is also an opportunity to ensure the by-laws are contemporary.

An example of how important it is to keep up to date with by-laws is in the arena of short-term rentals such as Airbnb. Some strata companies who did not anticipate the Airbnb trend have been caught out. They have some lot owners using their premises for short-stay holidaymakers, even though most of the lot owners are opposed to it.

As there was no by-law preventing short-stay accommodation, such strata companies have been unable to prevent this business activity.

The lesson is to act early and anticipate trends that could affect your strata scheme. These are the things that people should talk about when they have the opportunity to consolidate their by-laws.

Another point to think about is that it is difficult to change a governance by-law (assuming it is consistent with the minimum legal requirements demanded by the Strata Titles Act). That is because such change requires a resolution without dissent.

However, a strata company can consolidate some of its by-laws without the strata company having to vote on the issue, for example, when:

  1. removing by-laws that are invalid under the legislation;

  2. reclassifying by-laws as ‘governance’ and ‘conduct’ by-laws; and

  3. implementing changes to the default by-laws.

Some changes can therefore be relatively straightforward to do.

Make haste slowly

While consolidation is to be encouraged, it should be done carefully. Some complexities come to mind.

For example, there is no prescribed process for how a strata company goes about consolidating its by-laws. This may be a source of tension for some strata scheme members.

The decision to consolidate will fall to either the strata company or the strata council (if there is one). There is no requirement to put this decision to a vote. However, the strata company can decide (by ordinary resolution) that the council is not the appropriate party to consolidate the by-laws.

When reviewing the existing by-laws to see whether any of them are invalid, members of the strata scheme may have opposing views. For example, by-laws cannot be unfair, discriminatory, oppressive or unreasonable, thus requiring a strata company to behave in an ethical manner toward all lot owners. Unfair or discriminatory by-laws are invalid, but if the people who passed the by-laws are the same people tasked with reviewing the by-laws for consolidation, how can those people be impartial?

It will take some time and cost from legal advisers to ensure the consolidation process runs smoothly and the strata company gets the consolidation process right the first time around.

It is apparent that the cost of moving to a consolidated set of by-laws could be higher than the cost that would normally have been associated with changes to a couple of by-laws in the era before 1 May 2020.

Is it worth the cost?

“Prevention is better than cure” is how the old saying goes. So it is with the consolidation of by-laws. Consolidation is one mode of prevention of disputes which can arise from emotional lot owners arguing over what a by-law really means.

There is a cure. It lies in the technical arguments and adversarial positions taken in a hearing in the State Administrative Tribunal.

But such a cure is costly. One may apply a rule of thumb as follows. If the legal fees required to resolve a dispute in the SAT amount to $300,000, then it is quite likely that preventative legal work would probably have cost something like one tenth of that i.e. $30,000.

It is far better to do preventative work by getting the right sorts of by-laws in place, having them consolidated and in compliance with the new standards. That translates into a recognition that the cost of consolidating a strata company’s by-laws is worthwhile.

Consolidation of by-laws should not be considered solely as a burden. Undergoing the consolidation process should help reduce the scope for strata disputes in the future and make running the strata scheme more efficient. Strata managers and lot owners should positively encourage consolidation.

For more information please contact:

Anthony Quahe Managing Principal Civic Legal T: 08 9200 4900 E: aquahe@civiclegal.com.au

Alexandra Corstorphan Solicitor Civic Legal T: 08 9200 4900

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

Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.

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