Getting Your By-Laws Right: Making Landlords Accountable

In 2018, NCAT decided that a landlord is not responsible for ensuring that his or her tenants comply with the by-laws that apply to a strata building.  That decision was confirmed by the Appeal Panel of NCAT in Feletti -v- Eales [2019] NSWCATAP 100.

Therefore, if a tenant is breaching a by-law, the owners corporation of the building is not normally entitled to take action against the landlord to require the landlord to ensure that his or her tenant complies with the by-law.

This means that the owners corporation needs to take action against the tenant instead of the landlord which it may not want to do because tenants come and go and it can be difficult to enforce NCAT orders against them.

So, what is the solution to this problem for owners corporations?

There is, however, a solution to the problem.  An owners corporation can make a by-law that requires landlords to ensure that their tenants comply with the by-laws.  That by-law will give the owners corporation the right to take action against a landlord when his or her tenants breach the by-laws.

We have drafted that by-law and a number of strata managers have introduced the by-law into the strata schemes they manage.

We expect that the by-law will prove very useful for owners corporations who introduce it because it will allow those owners corporations to take action against landlords whose tenants are breaching the by-laws.

The by-law goes one step further and will also allow an owners corporation to take action against both landlords and tenants whose guests and invitees breach the by-laws.

Order Your By-law Here!

If you would like to find out more about the by-law, or you are interested in purchasing the by-law from us, please email us here or call 9562 1266 now.

In at least two recent cases, NCAT has decided that “no pets” by-laws are invalid.

Are strata pet by-laws banning the keeping of pets no longer worth the paper they are written on?

What about the basic habitation rights of owners who want to live in a “pet free” building?

Where does this leave “no pets” buildings?  Pet By-laws – Is it the End of No Pets By-laws?

Need a pet by-law or some advice contact us now!

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

Strata Managers are often unfairly the focus of criticism by lot owners, when something happens which those owners don’t like.

In some instances a dysfunctional owners corporation will have a compulsory strata manager appointed to try and get things back on track.

When a strata manager receives a request to put their name forward to be appointed as a compulsory strata manager it can be a difficult decision to make, as to whether to agree to put yourself forward.

The good news is that a recent NCAT Appeal Panel decision has provided some Helpful Guidance for Appointment of Compulsory Strata Managers.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

From sunset clauses to cooling-off periods, changes to the strata laws are being considered all over Australia.

The first cab off the rank will be modifications to the Victorian strata laws, due to be implemented in the next couple of months. These changes will bring some of those laws into line with NSW strata laws.

Some proposed changes include:

1: Sunset Clause

The new laws will clean up the ‘sunset clawback’ regulations. The laws will  prevent property developers from deliberately delaying the completion of buildings, in order to invoke the sunset clause.

No longer allowed will be the cancelling of contracts and the readvertising of properties on the market, at a much higher price.

Get out clauses will also be introduced for people who’ve bought properties off the plan, and discovered their completed apartment is substantially different from what they’d agreed to buy.

2: Cooling Off Period

The cooling off period will be extended from five to 10 business days with limitations on the vendor’s ability to get purchasers to sign those rights away.

3: Proxy Farming

Committees will be reduced from 12 to seven members with restrictions on proxy farming and committee proxies.

 4: Voting Rights

Lot owners voting rights on contractual limitations will be banned. It’s also yet to be seen if this will affect the vetos on short term letting often pre imposed on purchasers of new buildings.

 5: Levies

Lot owners who default in paying their levies will incur more debt recovery costs but, on the other hand, for those people suffering hardship payment plans can be arranged.

 6: Renovations

Owners corporations will be able to set conditions under which renovations must be conducted, clamping down on rogue renovators, while rules that unreasonably prohibit the installation of sustainability measures will be invalid.

7: Smoke Drift

Rules to combat cigarette smoke drift will be allowed and residents made responsible for their guests’ behaviour, including being fined for any breaches.

 8: Penalties

Maximum penalties for rule breaches will be increased to $1,100, with the fines paid to the owners corporation. Voting thresholds for legal action will vary, depending on the level of courts involved.

If these laws are accepted,  we’ll see a huge step closer to a uniform set of national strata laws.

More Information

You’ll find more information (and proposed laws) at consumer.vic.gov.au/OCBill. These regulations reflect many of the NSW laws in place and how they’ll roll out nationally.

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

A recent newspaper article concerning a Sydney residential complex where children have been banned from using a swimming pool within that complex, got us interested in taking a look at the extent to which the by-laws of a strata scheme or community scheme can be used to exclude children from using certain shared facilities in that scheme.

In the attached paper we reviewed the following areas concerning children, by-laws and shared facilities:

• Can children be excluded from shared facilities in a strata building or community scheme?
• For what matters can a strata by-law be made?
• Limitations on the matters of which a strata by-law can be made
• Model by-laws restricting children
• The position in NSW, Qld and Vic
• Community Scheme by-laws – A different position?
• Where a by-law is inconsistent with Anti-Discrimination legislation and discriminates against children on the grounds of age – Are these principles applicable to owners corporations?

So, can children be excluded from shared facilities? Children and By-laws in Strata and Community Schemes

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

In a recent case, NCAT has decided that a landlord falls under no obligation to ensure that their tenants comply with the by-laws in a strata scheme.

The Case
The case of Filetti -v- Eales; Eales -v- Filetti [2018] NSWCATCD 66 involved a dispute about noise between owners and residents in an apartment building in Vaucluse, Sydney.  Ms Filetti owns and lives in an apartment in that building.  She claimed that the tenants who lived in the apartment above hers created excessive noise. Ms Filetti applied to NCAT for orders against the tenants and the owner of the apartment above, Mr Eales, to require them to treat the floor space of their apartment to prevent the transmission of excessive noise. Ms Filetti also sought an order to compel Mr Eales to require his tenants to comply with the by-laws concerning the noise, and an order to require Mr Eales to compensate her for breaches of the by-laws committed by his tenants.

The Decision
NCAT dismissed Ms Filetti’s claim.  NCAT was not satisfied that Ms Filetti had proven that Mr Eales’ tenants created excessive noise.  NCAT accepted that it had power to make an order to require a lot owner to comply with the by-laws.  However, NCAT did not consider that it could make an order requiring an owner to ensure his or her tenants comply with the by-laws.  NCAT observed that the strata legislation does not impose an obligation on landlords to ensure their tenants comply with the by-laws (although NCAT did find that a landlord had capacity to require his or her tenants to comply with the by-laws).  For that reason, NCAT dismissed Ms Filetti’s claim for an order for Mr Eales to ensure that his tenants complied with the by-laws.

The Claim for Compensation
Ms Filetti also made a claim for compensation against Mr Eales for a breach of the by-laws by him.  NCAT expressed doubt that it had power to make an order for compensation in the circumstances.  NCAT considered that the decision of the Court of Appeal in The Owners Strata Plan 50276 -v- Thoo [2013] NSWCA 27 suggested that compensation is not available in respect of a breach of a by-law either in NCAT or a court of general jurisdiction.

Conclusion
Ultimately, Ms Filetti’s claim was unsuccessful because she did not prove that Mr Eales’ tenants were making excessive noise in breach of the by-laws. However, the more interesting aspects of the case are the findings by NCAT that it cannot make orders requiring a lot owner to ensure his or her tenants comply with the by-laws or order one lot owner to pay another owner compensation for a breach of the by-laws.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

An NCAT decision allowing a lot owner to keep unauthorised renovations was recently overturned by the Supreme Court.

In doing so, the Court confirmed that an owners corporation must act unreasonably before NCAT should overturn a decision of an owners corporation not to allow an owner to keep unauthorised alterations to common property.

Read on to find out why Supreme Court Quashes NCAT Decision to Allow Unauthorised Works

For strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

Thank you Strata for your support in 2016, we loved sharing our knowledge on all things Strata Law.

As a wrap up here are some useful links from 2016…

• We shared our knowledge at Forums throughout the year
• We tweeted, 107 times sharing the latest in strata law
• We developed Strata By-law Templates for the new strata laws making it easier for you
• We posted, 30 times on LinkedIn with the latest updates
• We improved our Levy Collection App, thanks to your feedback
• We shared our knowledge through 54 newsletters
• We expanded our team to better service the strata industry

We’re taking a break from 23 December 2016 and returning on 9 January 2017.

We wish you and your families a safe and happy ‘Festive Season’ and look forward to working with you in 2017.

For more information check out muellers.com.au or send an email to enquiries@muellers.com.au and we’ll get back to you on our return.