Who can take action to Enforce By Laws

05/07/2017

Generally, the Owner’s Corporation enforces breaches of the by-laws by an individual lot owner in the strata scheme.

The owners and occupiers of lots in a strata scheme owe a statutory duty to comply with the by-laws for the strata scheme of the Strata Schemes Management Act 2015 (NSW) (SSM Act).

The by-laws may contain provisions relating to the management, administration, control, use or enjoyment of the common property and individual lots within a strata scheme.  Such by-laws may also include controls on fittings and finishes, such as flooring.

In addition to any provisions of the by-law, SSM Act provides for general obligations on the owners and occupiers of a lot in a strata scheme to not create nuisance or hazard to the occupier of any other lot:

The SSM Act provides for orders to settle disputes or rectify complaints.  The application to enforce a by law can be made by an interested person, original owner or building manager in the Tribunal (NCAT) for disputes involving “an exercise of, failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme”. This does not require the consent or approval of an Owners Corporation as a prerequisite for enforcing bylaws.

A number of recent cases have demonstrated an owner of a lot in a strata scheme may successfully commence proceedings against another owner (or even the Owners Corporation) for orders that remedy breaches of by-laws.

The case of The Owners - Strata Plan No 62022, Carina Gilster Celia Bischoff, Eckhart Bischoff v Rita Sahade, Anthony Sahade and Victor Sahade (Sahade), was an action which was jointly commenced by the Owner’s Corporation and individual owners of a lot in a strata scheme against another lot owner under section 138 of the former Strata Schemes Management Act 1996 (NSW) (SSM 1996), which was replaced by the SSM.

The case of Sahade involved the use of floodlights by the respondents, which caused nuisance to the applicants. The Tribunal found in favour of the applicants, prohibiting the unreasonable use of the spotlight by the respondents and stated “the terms of the orders sought are to a large extent in absolute terms, however reasonable neighbourly behaviour must also be tempered with reasonable tolerance”.

In Stam v Andrews and Owner’s Corporation SP49154 in 2017, an individual lot owner commenced proceedings under section 232 of the SSM against both another lot owner and the Owner’s Corporation for works conducted on common property, in contravention of by-laws.

Each of Sahade and Stam involved long-running instances of breaches in by-laws.  In Stam, the Tribunal declined to award the applicant costs, on the basis it was not satisfied the circumstances met the threshold in the Civil and Administrative Tribunal Act 2013 (NSW), which related to awarding of cost orders.

Please do not hesitate to contact Richard Watson our Strata Solicitor or Shereen Da Gloria his assistant should you have any concerns or queries regarding a breach of by laws either by yourself or other lot owners in your strata complex.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.