1. Effective use and enforcement of by-laws Amanda Farmer Lawyers Chambers on Riley

2. Two enforcement methods
Notice to comply
Adjudicator’s order to comply
Different, but may be complementary…

3. Notice to comply Current law New law (due Nov/Dec 2016)
Strata Schemes Management Act 1996
Strata Schemes Management Act 2015
Section 45
Section 146
Approved by OC or Committee resolution, unless strata manager has been delegated the function
Correct form is vital
Proof of service
For breaches of by-laws only

4. Get a copy of the form... www.fairtrading.nsw.gov.au
Menu: Tenants and Home Owners
Strata schemes
By-laws in a strata scheme
(scroll to bottom) Notice to comply with a by-law in PDF format

5. Penalty for failure to comply
Current law
New law
Section 203
Section 147
Penalty up to $550
Penalty up to $1100 for first breach, up to $2200 for second breach within 12 months of earlier penalty order.
For breach of occupancy limits (section 137) penalty up to $5,500 first offence, $10,000 second offence.
Application must be made within 12 months of notice to comply
Application must be made within 12 months of notice to comply. Second notice not required for second breach.
Penalty payable to Fair Trading (part can go to OC, if OC carried out work)
Penalty payable to OC in full, and can be recovered as unpaid contribution (s 248)
Current law

6. Successful penalty application
Direct evidence (photo, video, statements in affidavit/statutory declaration form)
Witnesses to give evidence, be cross-examined
Repeat offender, with no reasonable excuse
Penalty is last resort
Note it is a penalty only. Not an order to comply
Tribunal may make a cost order (current law: s 204)
Cost order operates as judgment in favour of the OC
Cost order may be more than the penalty...

7. Adjudicator’s order Current law New law
Application for mediation (s 128)
Application for mediation (s 216)
Application for adjudicator’s order (s 138)
Written submissions
Determined ‘on the papers’ by Adjudicator
Application to for Tribunal order (s 232)
?? One round of submissions
Determined in person before Member
Appeal to Tribunal (s 177)
Appeal to Appeal Panel of Tribunal (s 80 Civil and Administrative Tribunal Act 2013)

8. Successful application for adjudicator’s order
What order do you want?
Citing relevant by-law / section of the Act that has been breached
Detailed evidence of breach
View submissions of other side at NCAT registry (will not be served)
Decision may take up to 4 months.

9. Penalty for breach of adjudicator’s order
Breach within 2 years of order being made:
- Penalty up to $5,500 (current law) - Penalty up to $11,000 (new law)
Penalties do not go to OC
Application for penalty is to the Tribunal
Same principles apply as for breach of notice to comply

10. Back to basics... Foster a sense of community to avoid bad behaviour
Use the five-step framework:
1. Is this by-law really necessary ?
2. Does it conform to modern social and broader community standards?
3. Does the proposal provide options and alternatives for individual behaviour?
4. It is practical and enforceable?
5. Is it lawful?
[“Growing Up” – by Michael Teys]

11. Problem by-laws
Model by-law 2: vehicles An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the prior written approval of the owners corporation.

12. The new law to the rescue...
s 112(3): enter into a licence agreement with the local council about parking areas
s 125: owners corporation has the power to dispose of abandoned goods (including motor vehicles) on common property
DRAFT regulation 34: process for how to remove motor vehicles from common property

13. Another problem by-law...
Model by-law 5: damage to common property (1) ...must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the prior written approval of the owners corporation... Does not prevent installation of locking or safety device...

14. Solution: get a better by-law
Current model by-law 11: The owner or occupier of a lot must not do any thing or permit any invitees of the owner or occupier to do any thing on the lot or common property that is likely to affect the operation of fire safety devices in the parcel or to reduce the level of fire safety in the lots or common property.

15. The new law Proposed new model by-law 2:
...may install, without the consent of the owners corporation...any locking or other safety device
... (3) Clause (1) does not apply to the installation of any thing that is likely to affect the operation of fire safety devices in the lot or to reduce the level of safety in the lots or common property.

16. Short term letting?
Article: Podcast – interview with Karen Stiles, OCN:

17. Smoking Current law New law Section 117 Section 153
Must not use or enjoy the lot in such a manner as to cause as nuisance or hazard
Must not use or enjoy the lot in such a manner as to cause a nuisance or hazard
Can be relied on to pursue nuisance arising from smoking
Specific notation: “Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.”

18. Proposed new model by-laws
DRAFT Regulation – Schedule 3
Three options (option A is default)
Owner or occupier to ensure smoke does not penetrate to common property or another lot
Above, plus: must not smoke on the common property except with written approval of the OC. Smoke must not penetrate other lot
Option A, plus: must not smoke on the common property.

19. Detailed smoking by-laws
Recommended
What is “smoking”? E-cigarettes?
To what extent is the owner responsible for occupier? Consent conditions?
See example here:

20. Landlord fined $11,000 for smoking neighbour
October 2015 – NCAT decision: Bhandari v Laming [2015] NSWCATAP 224
Tenancy decision
Mother and child renting unit. Chain-smoking elderly neighbour downstairs
Strata did nothing about the chain-smoker. No by-law in place
Landlord has duty to rent a liveable residence to mother and child
Landlord fined $11,000

21. Group exercise: Tommy the Terrible
THANK YOU
Group exercise: Tommy the Terrible