By-laws for BBQs, Pools and Gyms

Hot summer weather and the festive season is upon us and what a better time for lot owners and tenants to get fit, have a dip and pull out the barbie on a balmy summers day.

As the weather warms up to higher temperatures, so does the festive cheer. We recommend that reviewing and updating the following by-laws to help ensure that your strata blocks have clear rules and a stress free summer festive season.

BBQs – Fire Safety and Smoke Drift

For safety and smoke drift purposes it is highly recommended that a comprehensive by-law regulating (sometimes prohibiting) the use of BBQs on balconies.

Regulations on the type of BBQs such as

• Smokers
• Open fires
• Storage of LPG bottles, inflammable liquids and other substances and materials

All of these items should be considered as part of your by-laws.

Pools – Don’t Ignore the Potential Risks

A communal pool in strata has its benefits, but the risks cannot be ignored that’s why it’s important to have a clear set of communal rules in the form of a by-law to ensure everyone stays safe.

A by-law with clear communal rules such as:

• ‘No running’, ‘no diving (in shallow water)’ and ‘no bringing of glass’ at the pool are all great ways to help ensure everyone’s safety.
• Electricity and water do not mix well, so it’s important to minimise the risk of accidents by limiting electrical use around pools.
• And…who can and cannot use the pool.

Gyms – Reduce your Risks

Like pools, gyms in strata complexes have many benefits however come with safety risks and that’s why it’s critical to have a set of by-law rules to ensure everyone’s safety.

• Keeping noise to a minimum
• Hours of gym operation
• Safety rules
• Use and cleaning of equipment and more

Our specialist team of strata lawyers have been developing and reviewing by-laws for over 40 years. So, if you’re looking for a by-law or a review, we’d be happy to assist.

Get your by-laws right – speak to the experts!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

A Short Term Accommodation Levy for NSW?

Key tourism area’s across NSW are weighing in on Victoria’s short term rental accommodation (STRA) levy, agreeing that bed taxes were essential..

However, they’re concerned about the lack of details  on how the levy would work across platforms such as Airbnb and Stayz across NSW.

Is your Short Term Accommodation By-law Current?

Levy or no levy it’s important to ensure that your STRA by-laws are up to date and in line with you local council short term rental accommodation regulations, especially coming up to the festive season?

DOES YOUR SHORT TERM RENTAL ACCOMMODATION NEED A REVIEW?

Will NSW be the next state to impose a short term rental accommodation levy? Read on…

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Restricting or Banning Smoking in Strata

Smoking in strata buildings is a hot topic as Queensland grapples with a proposal to change their strata laws to allow smoking to be prohibited in strata buildings.  There are many buildings that have introduced by-laws banning smoking.  But most strata buildings still do not have a by-law concerning smoking.  So, is it possible to stop people smoking in a strata building without a by-law that bans smoking?  And if it is possible to stop smoking without a by-law, is it still necessary or desirable to have a by-law that bans or restricts smoking and, if so, why?

Banning Smoking without a By-Law

Somewhat surprisingly, it is possible to stop residents of a strata building smoking in their lots or on common property without a specific by-law that prohibits smoking.  Section 153 of the Strata Schemes Management Act 2015 prohibits residents from using or enjoying their lots in a manner or for a purpose that causes a nuisance or hazard to another resident. There are now three cases in which NCAT has made orders prohibiting residents in strata buildings from smoking on the basis that smoke caused by smoking constituted a nuisance to other residents in contravention of section 153.

NCAT Cases

In May 2019, a lot owner, Martin Gisks, succeeded in obtaining an order from NCAT prohibiting the resident of another lot in his building smoking on her balcony or in her bedrooms and requiring that resident to close all exterior doors and bedroom and bathroom windows when smoking inside her lot (Gisks v The Owners – Strata Plan No. 6743 [2019] NSWCATCD 44).

In October 2022, lot owners in a different building, Mr Pittman and Ms Cartwright, obtained orders from NCAT prohibiting the owners of another lot smoking or permitting any other person to smoke tobacco products on the balcony of their lot, and prohibiting them from permitting smoke from any tobacco product to be emitted from the interior of their lot into the lot of Mr Pittman and Ms Cartwright (Pittman v Newport [2022] NSWCATCD 173).

More recently, in June 2023, an owner in a strata building, Haydn Shaw, obtained an NCAT order prohibiting the owner and resident of another lot permitting the smoking of tobacco products in the courtyard of their lot (Shaw v Euen [2023] NSWCATCD 68).

In each case, NCAT concluded that the smoke caused by the smoking of cigarettes or tobacco products by residents constituted a nuisance which interfered with the amenity of other residents in contravention of section 153 of the Act.  It was on that basis that NCAT made orders prohibiting or restricting smoking in each of these cases.

Is a By-Law Banning Smoking Desirable?

These NCAT cases beg the obvious question:  does an owners corporation need to bother introducing a by-law prohibiting or restricting smoking?  The answer is “Yes” if the owners corporation wants to make it easier to ban or restrict smoking in its building.

This is because without a by-law that bans or restricts smoking:

• the owners corporation may not have standing to apply to NCAT for orders to prohibit residents smoking in a way that causes a nuisance to other residents because the owners corporation itself has not suffered from that nuisance (The Owners – Strata Plan No. 2245 v Veney [2020] NSWSC 134); and
• there is a need to prove that not only particular residents are smoking but also that the smoke from cigarettes or tobacco products has caused a nuisance to other residents by unreasonably and substantially interfering with the use and enjoyment of their lots (something which may be difficult to do).

In other words, if a by-law exists that bans smoking the owners corporation is able to enforce that by-law and to succeed it does not need to show that smoke from cigarettes constitutes a nuisance to other residents.  The owners corporation just needs to prove that particular residents are smoking in breach of the by-law.  That is much easier to do.

Conclusion

It is possible to stop residents smoking without a by-law that bans smoking.  However, it is much more difficult to do so because it requires proof that the smoking causes a nuisance to other residents.  And there is real doubt that an owners corporation can apply to NCAT for an order to stop residents smoking in those circumstances.  Introducing a by-law prohibiting or restricting smoking overcomes those problems, gives the owners corporation the right to take steps through NCAT to prevent residents smoking and makes it easier for the owners corporation to win the case and put an end to smoking in its building.

DO YOU NEED A BY-LAW THAT PROHIBITS OR RESTRICTS SMOKING? CLICK HERE NOW!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Strata Disputes – Under the Ground up in the Air and Everywhere in Between 

Strata disputes and common property come in all shapes and sizes, especially when dealing with neighbouring property owners.

As owners of real property, owners corporations find themselves dealing with the owners of neighbouring land in a multitude of circumstances.

Neighbouring Land Disputes

• Easements
• Ground Anchors
• Cranes
• Scaffolding
• Trees, Fences and Walls
• Law of Nuisance
• Damage and Liability
• And even, landslides

You’ve probably had reason to deal with one or more of the above – but if you haven’t, then get ready, because you almost certainly will at some point in time!

Read on… Common Property and Dealing with Adjoining Owners

DEALING WITH NEIGHBOURING PROPERTY – DO YOU NEED AN EASEMENT?

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist. 

There are more than 85,000 strata schemes in NSW with approximately one in seven NSW residents living in strata apartments and it’s estimated by 2040 this will grow by 50 percent in Greater Sydney!

So, it’s no suprise that the number of people living in strata applying to NCAT for orders to resolve strata disputes has significantly increased by 45% over the last 5 years.

Cases related to water leaks, delays in fixing leaks and claims for compensation for rental loss have played a major role in the growth of NCAT cases.

In this article we take a closer look at the responsibility of an owners corporation to repair common property water leak damage.

The Duty to Repair

Section 106 of the Strata Schemes Management Act 2015 (Act) imposes on an owners corporation a duty to:

(a) properly maintain and keep in a state of good and serviceable repair the common property;

(b) where necessary, renew or replace any fixtures or fittings comprised in the common property.

This duty requires an owners corporation to fix any defects in the common property that are allowing water to leak into a lot.

The Nature of the Duty to Repair

The duty of the owners corporation to maintain and repair common property has been considered in a number of cases.

In those cases, the Supreme Court and NCAT has said that the duty to repair common property:

(a) is compulsory;

(b) is absolute; and

(c) is not a duty to use reasonable care to maintain and repair common property or to take reasonable steps to do so but a strict duty to maintain and keep in repair.

This means that an owners corporation cannot delay any repairs that need to be carried out to fix defects in the common property that are causing water to leak into a lot.  Even if it is impossible to find contractors who are available to repair those defects, that does not provide an owners corporation with a lawful excuse for delaying any necessary repairs to common property.

Other Aspects of The Duty to Repair

There are other aspects of the duty to repair common property that are often overlooked particularly in the case of new buildings or where a tenant damages common property.

The Supreme Court and NCAT have held that the duty to repair common property:

(a) extends to require the remediation of defects in the original construction of the building;

(b) must still be fulfilled even if the owners corporation did not cause the damage to the common property which needs to be repaired.

This means that, in general, an owners corporation cannot blame an original builder or developer for defects in the common property and refuse to fix them.  However, if the owners corporation takes legal action against a builder or developer in respect of defects in the original construction of the common property, then the owners corporation can put on hold its obligation to repair common property defects.

Further, the cases say that even if a person damages the common property, in general, the owners corporation must still repair that damage, even though it may have a right to recover the cost of that repair from the offender.  Alternatively, under section 132 of the Act, the owners corporation can apply to NCAT for an order to require an owner or occupier to repair damage to the common property caused by them.  It appears that if the owners corporation takes legal action against an owner or occupier in NCAT to obtain that order, that allows the owners corporation to put on hold its duty to repair the damage.

Anything Else?

The duty to repair the common property also requires the owners corporation to carry out repairs which are not for the benefit of the majority of owners.  Indeed, the owners corporation is obliged to carry out repairs to the common property that only benefit a single owner.  This means that an owners corporation cannot refuse to repair a leaking window on common property on the basis that the leak only affects one lot.

Is there an Escape Route?

There are generally two ways for an owners corporation to relieve itself from its duty to repair common property (apart from the ways we have discussed above).

First, an owners corporation can pass a special resolution at a general meeting to determine that it is inappropriate to repair a particular item of common property.  This can be done under section 106(3) of the Act but only if the decision will not affect the safety of the building or detract from the building’s appearance.

Second, an owners corporation can make a common property rights by-law that transfers its responsibility for the repair of a particular item of common property to one or more owners.  The by-law needs to be approved by a special resolution at a general meeting.  However, the by-law also needs to be approved by the owners who will be responsible for repairing the item of common property under the by-law.  Often it proves difficult to obtain the consent of those owners.

What about Compensation?

Inclement weather can cause a substantial increase in claims for compensation being made by owners against owners corporations who have failed to repair defects that have allowed water to leak into and cause damage to lot property.  Typically, those claims are made by investor owners for rental loss when the damage to their lots become so severe that the lots are uninhabitable.  But compensation claims can also cover alternate accommodation expenses if an owner occupier is forced to move out of a lot due to damage caused by water ingress, the costs an owner incurs cleaning and repairing lot property (e.g. replacing saturated carpet), experts’ fees and legal costs.  The liability of an owners corporation to pay compensation to an owner is a strict one.

This can make it difficult for owners corporations to defend compensation claims that are made by owners as a result of common property defects that allow water to leak into and damage lot property. Indeed, one Court has remarked that this puts an owners corporation into the position of an insurer.

Conclusion

Even though it may be difficult to find contractors who are able to repair common property defects, that does not provide an owners corporation with a lawful excuse for delaying essential repairs and maintenance.  The duty to repair is a strict one and there are limited exceptions to that rule.  This emphasizes the importance of proactive and ongoing building maintenance to help avoid the problems that many owners corporations are now encountering.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Does an owners corporation have to enforce its by-laws?  If an owners corporation decides to ignore breaches of its by-laws, can NCAT force the owners corporation to take action and enforce its by-laws?  A recent NCAT case provides the answer to these questions.

Introduction

Almost every strata building is governed by a set of by-laws. Those by-laws set out rules that regulate behaviour, noise, the keeping of pets and, among other things, the performance of renovations.  The by-laws are binding on the owners corporation and the owners and occupiers of the lots.  An owners corporation has the power to enforce the by-laws if they are breached.  For example, an owners corporation can issue an owner or occupier of a lot with a notice to comply with a by-law or apply to NCAT for an order to require the owner or occupier to obey a by-law.  But what happens when an owners corporation decides to turn a blind eye to a breach of a by-law committed by an owner?  Can the owners corporation be forced to enforce the by-law against the culprit?  If so, by whom?  A recent NCAT case reveals the answers to these questions.

The Case

Suzanne Lyon owns a lot in a residential strata scheme in Wollstonecraft, Sydney.  In August 2020, the owners corporation created a common property rights by-law to give the owner of the lot beneath Ms Lyon’s lot, Mr Swanson, the right to build a pergola over his rear courtyard.  Subsequently, Mr Swanson built the pergola, but Ms Lyon claimed that the pergola did not comply with the by-law because it was too high.  The by-law had permitted the pergola to be 2.7m above the concrete floor of the courtyard but it was built about 3.21m above that concrete floor.  Ms Lyon wanted the pergola to be removed or modified but the owners corporation was not prepared to force Mr Swanson to change the pergola.  For that reason, Ms Lyon sued the owners corporation in NCAT and sought orders to require the owners corporation to remove Mr Swanson’s pergola or enforce the common property rights by-law by requiring the pergola to comply with it.

The Outcome

Ms Lyon’s claim was partially successful.  NCAT agreed with Ms Lyon that the pergola was too high and was not built in accordance with the by-law.  NCAT then considered whether it had power to make an order to force the owners corporation to enforce the by-law and require Mr Swanson to comply with it by changing the height of the pergola.  NCAT concluded that it did have that power because it could make an order, on the request of an owner, to settle a complaint or dispute about the failure of an owners corporation to exercise its functions including its power to enforce a by-law.  NCAT held that there would be a sufficient basis to make an order where an owners corporation has a discretion to exercise a function (such as its discretionary power to enforce a by-law) but decides not to do so.  NCAT considered that there was little point in the strata legislation creating a mechanism for an owners corporation to pass a common property rights by-law merely to have that by-law flouted and for the owners corporation to fail to act in the face of complaints from other owners and legal advice it had received.  Ultimately, NCAT concluded that the owners corporation’s failure to manage Mr Swanson’s non compliance with the by-law, or to make any attempt to require him to comply with the by-law, meant that an order should be made requiring the owners corporation to exercise its functions to administer the strata scheme for the benefit of the owners and in accordance with the by-laws.

The Orders

For those reasons, NCAT ordered the owners corporation to take all necessary steps to require Mr Swanson to comply with the by-law by requiring him to reduce the height of the pergola to 2.7m above the concrete surface of his courtyard.  However, NCAT gave the owners corporation 6 months to comply with that order to allow Mr Swanson sufficient time to apply to the owners corporation for approval to amend the by-law to permit the pergola to remain at a height of 3.21m above the courtyard floor and for that amendment to the by-law to be approved by the owners corporation.

Analysis

This case is one of the first times that NCAT has made an order to compel an owners corporation to enforce its by-laws.  The decision does break new ground because it was previously thought that because the Strata Schemes Management Act 2015 does not explicitly require an owners corporation to enforce its by-laws but rather gives an owners corporation a discretion to do so, it was not possible for NCAT to force an owners corporation to require owners and occupiers to comply with its by-laws.  The order made in the case begs the question: What does the owners corporation need to do to take “all necessary steps” to require an owner to comply with a by-law?  Does that require the owners corporation to issue a notice to comply with the by-law against the owner?  Or does it require the owners corporation to do more and, if necessary, take legal action against the owner to force him or her to comply with the by-law?  And what if the owners corporation is successful in that legal action, but the owner ignores orders that are made to require him or her to comply with the by-law?  What is the owners corporation required to do then?  It remains to be seen whether those questions will need to be answered by NCAT in the future.

Conclusion

The case sends a message that owners and occupiers of lots who are affected by breaches of the by-laws committed by other owners and occupiers are not helpless.  They can apply to NCAT for orders to force their owners corporation to enforce the by-laws against those in breach of them.  It remains to be seen whether the decision in Lyon v The Owners – Strata Plan No. 11045 [2023] NSWCATCD 31 will be followed in future cases.

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Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Fire Orders and Cost Recovery By-laws

An owners corporation is only responsible for the common property in its strata scheme.  So how does an owners corporation deal with a fire order that requires it to do work to lot property?  Can a Council issue a fire order against an owners corporation to do work to lot property? If so, can the owners corporation make a by-law to recover from owners the costs it incurs doing fire safety work in their lots? The answers might surprise you.

Strata Law

An owners corporation is the owner of the common property it is strata scheme.  The owners corporation is responsible for managing and controlling the use of the common property and maintaining and repairing the common property.  Those obligations arise under the Strata Schemes Management Act 2015 (Strata Act).

An owners corporation does not own the lots in its strata scheme, and under that Act, the owners corporation has virtually no responsibility in relation to any of the lots.  This is because the lots are privately owned and the owners and occupiers of the lots are generally responsible for managing and maintaining them.  So, under the Strata Act, the owners corporation is generally not responsible for maintaining and repairing lot property.  Further, in general, the owners corporation is only able to adopt budgets and raise levies to cover expenses associated with the common property, not lot property

Fire Orders

But what happens when a Local Council issues a fire order that requires an owners corporation to carry out work to both common property and lot property.  Does the Council have power to issue that order? And does the owners corporation have power to comply with the order and do work that affects lot property?

Planning Laws

The Environmental Planning and Assessment Act 1979 (EPA Act) gives a Local Council power to order the owner of premises to do things that are specified in the order in order the promote adequate fire safety in a building when provisions for fire safety in the building are inadequate to prevent, suppress or prevent the spread of fire.  The EPA Act says that premises include a building and that an owner includes, in the case of land that is the subject of a strata scheme, an owners corporation.  Therefore, the EPA Act gives a Local Council power to order an owners corporation to carry out work to improve fire safety to both common property and lot property.

Case Law

This was confirmed by the NSW Court of Appeal as long ago as 1985.  In 1985, the Court decided the case of Proprietors of Strata Plan 159 v Parramatta City Council.  In that case, the Council had issued a fire safety order to the owners corporation of a strata building which required the owners corporation to carry out fire safety upgrades principally in two lots which were to be used as a restaurant.  The owners corporation challenged the order and argued that the order unfairly burdened other owners with the costs of carrying out fire safety upgrades predominately to those two lots.  However, the Court concluded that the statutory language was clear in permitting a Council to issue a fire order against an owners corporation that required work to be done to lot property.  The Court acknowledged that this meant that sometimes the costs of complying with a fire order would be shared by all of the owners even when the need for fire safety upgrades was confined exclusively to the lots of some of the owners which may seem inequitable.

But the Court considered that there were two answers to this problem.  First, if the legislation clearly allowed a fire order to require an owners corporation to do work to lot property the mere fact that might produce a sense of injustice between owners was not a reason for the Court frustrating the clearly expressed intention of the legislature and it was a matter for the Parliament to change the legislation to overcome any unfairness if it saw fit to do so.  Second, fire is a phenomenon which endangers all owners and occupiers of lots meaning all owners have a common interest in fire prevention and fire safety.  This meant that it made sense for the legislation to allow the Council to issue one fire order against the owners corporation rather than have to issue and monitor compliance with multiple fire orders against numerous parties.  Ultimately, the Court considered that it was in the common interest of all owners for the Council to have the power to issue the fire order against the owners corporation.  The Court’s decision has recently been referred to with approval by NCAT.

Recovery of Costs

If a Council can require an owners corporation to carry out fire safety upgrades to lot property, can the owners corporation recover the cost of performing those upgrades from the relevant owners?  There is no clear answer to that question.  Many owners corporations have introduced cost recovery type by-laws that purport to allow them to recover costs from owners in a variety of circumstances.  There have been several recent cases in which NCAT has invalidated cost recovery type by-laws.  But there are also cases where NCAT has upheld cost recovery type by-laws. Ultimately, if an owners corporation wants to seek to recover from certain owners the costs it incurs carrying out fire safety upgrades in their lots, a cost recovery type by-law will need to be put in place but there may be difficulty enforcing the by-law.

Conclusion

A Council is entitled to issue a fire order against an owners corporation that requires fire safety upgrades to be carried out to lot property.  Where that occurs, the Strata Act gives the owners corporation the right to enter the lots in order the do the work required by the fire order.  If an owners corporation wants to recover the costs it incurs carrying out fire safety upgrades in a particular lot, a cost recovery type by-law will need to be put in place for that purpose.  However, NCAT has recently raised question marks over the validity of cost recovery type by-laws so the recovery of those costs cannot be guaranteed.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Strata apartments come with many perks for owners and tenants but of course, there’s also a downside with one of the biggest complaints being noise. As more and more people enjoy apartment living noise complaints have increased in recent times by 33%* and they continue to rise.

What are top noise complaints in strata?

• Barking dogs
• Power tools
• Loud music
• Alarms
• Construction/renovations
• Vehicles
• Wooden/tiled floors
• Children

And… some of the more unusual complaints in more recent times include:

• Tap dancing
• Assembling IKEA furniture
• Loud urinating at night is becoming one of the most common reasons for sleep-­deprived apartment dwellers
• Late night showers

What if your strata by-law neglects to mention specific issues around noise?

A well written noise by-law can go much further than the model by-law and provide residents with guidelines and time restrictions for when they can and can’t make noise. It also lets neighbours know their rights if they feel the need to make a noise complaint.

Did you know if your noise by-laws are insufficient or lacking clarity on noise related matters our specialist team of strata lawyers can assist you in updating or developing your noise by-law.

*NSW Department of Fair Trading

DOES YOUR NOISE BY-LAW NEED TO BE REVIEWED?

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Owners corporations are increasingly encountering aggressive behaviour by some telecommunications providers who say they are acting under powers granted to them pursuant to the Telecommunications Act.

Preserving the owners corporation’s rights and negotiating position can come down to whether the owners corporation responds in a timely fashion, and in accordance with the relevant legislation.

Failure to do these things may mean the owners corporation is stuck with a proposal to install infrastructure and technology which the owners do not want.

It is important that you understand the steps which your owners corporation needs to take in dealing with such telecommunications providers.

The Rise of “Low Impact” Telecommunications Infrastructure

Once upon a time, the only occasion on which an owners corporation would hear from a telecommunications provider was if that telecommunications provider wished to install a mobile telephone tower on top of the building comprising the strata scheme.

In most instances this would lead to negotiations between the owners corporation and the relevant telecommunications provider as to the nature of the leasing arrangement which would be put in place to enable that mobile telephone tower to be erected and maintained and almost always the owners corporation would receive rental income as a result of allowing such installation to take place.

Under the Telecommunications Code of Practice 2021, telecommunications providers can give notices to an owners corporation in relation to their intention to use owners corporation’s property for various purposes.  Typically, these notices include:

• The Inspection Notice – this notice provides the owners corporation with notice of the telecommunications provider’s intention to enter the strata scheme carry out an inspection of the building or buildings comprising the strata scheme to enable the telecommunications provider to consider whether it wishes to proceed with any further proposals; and/or
• The Installation Notice – typically, a notice of this kind provides the owners corporation with written notice of the telecommunication provider’s intention to install certain “low impact” telecommunications infrastructure and systems – the notion of what is “low impact” is defined by the relevant legislation.

The Importance of Responding

The relevant legislation requires that an owners corporation receiving a notice from a telecommunications provider under the relevant legislation must respond:

• in writing;
• within a certain limited timeframe; and
• in a specified manner,

otherwise the telecommunications provider may automatically have rights to do certain things pursuant to the relevant legislation.  For example, if the owners corporation fails to properly respond and/or fails to respond within the timeframes governed by the legislation, then the owners corporation may find itself without any basis to argue against a telecommunications provider installing certain equipment and infrastructure on the building, including certain forms of antennas, cabling etc.

“Pushing Back” Against Telecommunications Providers

Over the last 12 months we have seen a rise in the instances of such proposals, and specifically, of inspection notices or installation notices being given to owners corporations.

Normally the manner in which an owners corporation can respond is extremely limited, as is the time in which an owners corporation can respond.

Interestingly, when we have been engaged to object to those notices (in accordance with the relevant parts of the telecommunications legislation) then the telecommunications providers have, almost in every instance, withdrawn their notices and decided not to further engage with that particular owners corporation.

Therefore , even if the situation appears to have been “lost”, where  the owners corporation has failed to take any steps to deal with an inspection notice or installation notice, it is still worth engaging legal advisors to formally object to those notices, as it appears that telecommunications providers may not be willing to take on a “hostile” owners corporation, properly engaged.

Timing is Everything!

Should your owners corporation receive a notice from a telecommunications provider, then it is critical that you seek advice promptly, as some of the timeframes in which the owners corporation is entitled to respond are only 10 days in length.

Under the relevant legislation, any objection must deal with certain specified matters.

Need assistance with a proposal from a telecommunications service provider, we are experienced in the processes under the telecommunications legislation including drafting ‘Notices of Objection’ in compliance with that legislation. CLICK HERE!

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As the financial pressure heightens with rising interest rates and cost of living increases we’re seeing more and more people default on their levy payments.

We all know that raising and collecting strata levies for building maintenance and scheme administration is fundamental to an efficiently run strata complex.

When owners corporations allow owners to fall behind in their levy payments it leads to cash flow problems for an owners corporation which could lead to critical building works not being addressed and many other issues.

Recovering Overdue Levies

The recovery of strata levies is unique and requires a detailed understanding of the various strata laws as they apply in NSW.

So, when it does become a legal issue, recovering overdue levies is highly technical with a number of steps that must be taken before commencing legal action to recover the overdue levies from an owner.

Muellers WINS Huge Levy Debt Case and Rewrites the Law!

Sale of Apartment Owned by Monk who Disappeared Overseas Sets Legal Precedent!

Owners Corporations and strata managers in NSW sometimes wonder how they can recover outstanding strata levies from owners of strata units who’ve disappeared and are nowhere to be found. Well, do not be disillusioned JS Mueller & Co Lawyers has now given hope to owners corporations and strata managers.

Read on…Sydney Morning Herald (SMH) Domain

Overwhelmed and Need Assistance with Levy Debt Recovery?

We are expert collectors and negotiators highly skilled in all essential aspects of levy debt collection.

• We have been collecting overdue levies for 30+ years.
• Our dedicated team of paralegals do nothing but levy debt collection.
• We do levy debt collection across regional and metropolitan NSW.
• We will get results.

Now you can, sit back, relax and let us collect those overdue levies for you!

Contact Us

Speak to the specialist NSW levy collections experts here, we’d be happy to assist.