Chapter 2 Management of strata schemes
Introductory note. This Chapter provides for who can be involved in the management of a strata scheme and for the rules that govern a strata scheme.
Introductory note. This Part provides an overview of the Chapter.
8 Who manages a strata scheme?
(1) On the registration of a strata plan for a strata scheme, there is established an owners corporation for the strata scheme in accordance with Part 2.(2) An owners corporation for a strata scheme has the principal responsibility for the management of the scheme.Note. Strata plans for freehold strata schemes are registered under section 8 of the Strata Schemes (Freehold Development) Act 1973 and strata plans for leasehold strata schemes are registered under section 7 of the Strata Schemes (Leasehold Development) Act 1986.An owners corporation for a strata scheme is the same as a body corporate for a strata scheme previously established under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.
9 Who else may be involved in managing a strata scheme?
The owners corporation may be assisted in the carrying out of its management functions under this Act by any one or more of the following:(a) the executive committee of the owners corporation established in accordance with Part 3,(b) a strata managing agent appointed in accordance with Part 4,(c) a caretaker appointed in accordance with Part 4A.
10 What rules govern a strata scheme?
On the registration of a strata plan for a strata scheme, a set of by-laws applies to the strata scheme as provided by Part 5.
Part 2 The principal manager—the owners corporation
Introductory note. This Part provides for the establishment of an owners corporation for a strata scheme and for the procedure of an owners corporation.
11 Constitution of owners corporation
(1) The owners of the lots from time to time in a strata scheme constitute a body corporate under the name “The Owners—Strata Plan No X” (X being the registered number of the strata plan to which that strata scheme relates).(2) An owners corporation is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation.Note. This subsection ensures that neither the Corporations Act 2001 nor Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth will apply in relation to an owners corporation. Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter in relation to those Acts, then the provisions of those Acts will not apply in relation to that matter in the State concerned.
12 Functions of owners corporation
An owners corporation has the functions conferred or imposed on it by or under this or any other Act.
13 Owners corporation may employ persons to assist in exercise of functions
(1) An owners corporation may employ such persons as it thinks fit to assist it in the exercise of any of its functions.(2) An owners corporation must ensure that any person employed to assist it in the exercise of a function has the qualifications (if any) required by this Act for the exercise of that function.Note. An owners corporation may employ such persons to assist it as, for example, caretakers and persons providing services to retirement villages. For example, a caretaker is required to be appointed under Part 4A. In addition, the Act requires certain functions to be performed by particular persons or persons having particular expertise. For example, section 24 places restrictions on the persons who can exercise functions relating to the finances and accounts of an owners corporation.(3) An owners corporation may not delegate any of its functions to a person unless the delegation is specifically authorised by this Act.
14 Meetings and procedure of owners corporation
Schedule 2 applies to an owners corporation.
15 Termination of strata scheme
(1) An owners corporation for a strata scheme that is subject to an order of the Supreme Court under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 for its termination continues in existence until it is wound up in accordance with the order.(2) While it so continues in existence, the owners corporation is constituted of persons who the order specifies are liable to contribute money required for the discharge of the liabilities of the owners corporation and persons who the order specifies are entitled to share in a distribution of assets of the owners corporation.Note. A freehold strata scheme may be terminated under Part 3 of the Strata Schemes (Freehold Development) Act 1973 and a leasehold strata scheme may be terminated under Part 3 of the Strata Schemes (Leasehold Development) Act 1986.
Part 3 Others involved in management—the executive committee
Introductory note. This Part requires an owners corporation for a strata scheme to appoint an executive committee to make decisions for the owners corporation. However, the owners corporation may limit the matters that the executive committee may decide and the Act contains various matters that must be decided by the owners corporation in general meeting.The executive committee must appoint a chairperson, secretary and treasurer. This Part sets out the functions of those officers.
This Part gives effect to Schedule 3 which contains more detailed provisions about the constitution and procedure of executive committees.
Division 1 Constitution of the executive committee
16 Owners corporation to appoint executive committee
(1) An owners corporation must appoint an executive committee of the owners corporation in accordance with this Division.(2) The owners corporation may appoint an executive committee before the first annual general meeting of the owners corporation.(3) If an executive committee has not been appointed before the first annual general meeting of the owners corporation, the owners corporation must appoint an executive committee at that meeting.(4) If there is no executive committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.
17 What happens if executive committee is not appointed?
(1) An Adjudicator may, on application, make an order appointing a person nominated by the applicant (and who has consented to that nomination) to convene a meeting of the owners corporation if no executive committee of the owners corporation exists after the first annual general meeting.(2) The meeting is to be convened and held within such time as is specified in the order.(3) A meeting held under this section is, for the purpose of the election of an executive committee, taken to be the first annual general meeting of the owners corporation.(4) An order made under this section may include such ancillary or consequential provisions as the Adjudicator thinks fit.(5) If an order made under this section so provides:(a) the person appointed to convene a meeting of an owners corporation by the order is to preside at the meeting and, while the person so presides, is taken to be the chairperson of the owners corporation, and(b) notice of that meeting may be given in the manner specified in the order.(6) An application under this section may be made only by an owner, mortgagee or covenant chargee of a lot in the relevant strata scheme.
18 Executive committee to appoint chairperson, secretary and treasurer
(1) The members of an executive committee must, at the first meeting of the executive committee after they assume office as members, appoint a chairperson, secretary and treasurer of the executive committee.(2) The chairperson, secretary and treasurer of the executive committee are also, respectively, the chairperson, secretary and treasurer of the owners corporation.(3) One person may be appointed to more than one office under this section.
19 What happens if chairperson, secretary and treasurer are not appointed?
(1) An Adjudicator may, on application, make an order appointing a person nominated by the applicant (and who has consented to that nomination) to convene a meeting of the executive committee of the owners corporation if there is not a chairperson, secretary and treasurer of the executive committee of the owners corporation after the first meeting of the executive committee has been held.(2) The meeting is to be convened and held within such time as is specified in the order.(3) A meeting held under this section is taken to have been held by the executive committee of the owners corporation.(4) An order made under this section may include such ancillary or consequential provisions as the Adjudicator thinks fit.(5) If an order made under this section so provides, notice of the meeting may be given in the manner specified in the order.(6) An application under this section may be made only by an owner, mortgagee or covenant chargee of a lot in the relevant strata scheme.
20 Provisions relating to constitution of executive committee, appointment of office holders and meetings of executive committee
(1) Part 1 of Schedule 3 makes further provision with respect to the constitution of an executive committee and the appointment of the chairperson, secretary and treasurer.(2) Part 2 of Schedule 3 makes further provision with respect to meetings of an executive committee.
21 Executive committee’s decisions to be decisions of owners corporation
(1) A decision of an executive committee is taken to be the decision of the owners corporation, subject to subsection (4).(2) However, the following decisions may not be made by the executive committee:(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.(3) An owners corporation may in general meeting continue to exercise all or any of the functions conferred on it by this Act or the by-laws even though an executive committee holds office.(4) Despite any other provision of this Act, in the event of a disagreement between the owners corporation and the executive committee, the decision of the owners corporation prevails.
Division 2 Members and office holders of the executive committee
22 What are the functions of the secretary of an owners corporation?
The functions of a secretary of an owners corporation include the following:(a) to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting,(b) to give on behalf of the owners corporation and of the executive committee the notices required to be given under this Act,(c) to maintain the strata roll,(d) to enable the inspection of documents on behalf of the owners corporation in accordance with section 108,(e) to answer communications addressed to the owners corporation,(f) to convene meetings of the executive committee and (apart from its first annual general meeting) of the owners corporation,(g) to attend to matters of an administrative or secretarial nature in connection with the exercise, by the owners corporation or the executive committee, of its functions.
23 What are the functions of the treasurer of an owners corporation?
(1) The functions of a treasurer of an owners corporation include the following:(a) to notify owners of any contributions levied in accordance with this Act,(b) to receive, acknowledge, bank and account for any money paid to the owners corporation,(c) to prepare any certificate applied for under Division 4 of Part 5 of Chapter 3,(d) to keep the accounting records and prepare the financial statements.(2) The treasurer of an owners corporation may delegate the exercise of any of the treasurer’s functions (other than this power of delegation) to another member of the executive committee if:(a) the delegation is specifically approved by the executive committee of the owners corporation, and(b) the executive committee specifically approves of the function being delegated to that member of the executive committee, and(c) the delegation is subject to such limitations as to time or otherwise as the executive committee requires.(3) While a delegate is acting in accordance with the terms of such a delegation, the delegate is taken to be the treasurer of the owners corporation.(4) The executive committee of an owners corporation may, by a notice in writing served on the treasurer of the owners corporation, order the treasurer not to exercise any of the treasurer’s functions that are specified in the notice unless the treasurer does so jointly with another person so specified.
24 Who can exercise functions relating to the finances and accounts of the owners corporation?
A person must not exercise any of the functions of an owners corporation or the treasurer of an owners corporation relating to the receipt or expenditure of, or the accounting for, money of the owners corporation or the keeping of the books of account of the owners corporation unless the person is:(a) a member of the owners corporation or of the executive committee and the treasurer of the owners corporation or of the executive committee, or(b) a strata managing agent who is empowered to exercise that function, or(c) a person with whom the treasurer of the owners corporation is required by an order of the executive committee to exercise that function jointly, and who is enabling the treasurer to comply with the order, or(d) a member of CPA Australia, or a member of the Institute of Chartered Accountants in Australia, authorised by the owners corporation to exercise the function, or(d1) a member of the Institute of Public Accountants authorised by the owners corporation to exercise the function, or(e) during the initial period only—a person authorised by the original owner to exercise the function.Maximum penalty: 5 penalty units.
25 Can members of the executive committee be paid?
An owners corporation may pay to a person who is the chairperson, secretary, treasurer or a member of the executive committee such amount as the owners corporation determines at an annual general meeting in recognition of services performed by the person for the owners corporation in the period since the last annual general meeting.
Part 4 Others involved in management—strata managing agents
Introductory note. This Part allows an owners corporation for a strata scheme to appoint a person who is licensed as a strata managing agent under the Property, Stock and Business Agents Act 2002 as a strata managing agent for the scheme. An owners corporation may delegate its functions to its strata managing agent. However, an owners corporation may not delegate the making of certain decisions that this Act requires to be made by the owners corporation, such as decisions on the amount of contributions to the administrative and sinking funds to be levied on owners.
Division 1 Appointment of strata managing agent
26 What is a strata managing agent?
An owners corporation may appoint a person who is the holder of a strata managing agent’s licence under the Property, Stock and Business Agents Act 2002 to be the strata managing agent of the strata scheme.Note. The Property, Stock and Business Agents Act 2002 defines strata managing agent as a person (whether or not such person carries on any other business) who, for reward (whether monetary or otherwise), exercises or performs any function of an owners corporation under this Act, not being:(a) a person who:(i) is the owner of a lot to which the strata scheme for which the owners corporation is constituted relates, and(ii) is the secretary or treasurer of the executive committee of the owners corporation, and(iii) exercises only functions of the owners corporation required, by the by-laws in force in respect of the strata scheme for which the owners corporation is constituted, to be exercised by the secretary or treasurer of that executive committee or by the owners corporation, or(b) a person who maintains or repairs any property for the maintenance and repair of which the owners corporation is responsible.
27 How is a strata managing agent appointed?
(1) A strata managing agent is to be appointed by instrument in writing authorised by a resolution at a general meeting of the owners corporation.(2) An owners corporation may terminate the appointment of a strata managing agent in accordance with the instrument of appointment if authorised by a resolution at a general meeting of the owners corporation.(3) The functions of a strata managing agent of a strata scheme may be transferred to another person by the strata managing agent, but only with the approval of the owners corporation for the strata scheme. A person to whom those functions are transferred is taken to be appointed as a strata managing agent of the strata scheme concerned in accordance with this section.
Division 2 Functions of strata managing agent
28 What functions of an owners corporation can a strata managing agent exercise?
(1) An owners corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent:(a) all of its functions, or(b) any one or more of its functions specified in the instrument, or(c) all of its functions except those specified in the instrument,but only if authorised to do so by a resolution at a general meeting and subject to subsection (3).(2) An owners corporation may, if authorised to do so by a resolution at a general meeting, revoke a delegation under this section.(3) An owners corporation cannot delegate to a strata managing agent its power to make:(a) a delegation under this section, or(b) a decision on a matter that is required to be decided by the owners corporation, or(c) a determination relating to the levying or payment of contributions.(4) A function delegated under this section may, while the delegation remains unrevoked, be exercised from time to time in accordance with the delegation.(5) A delegation under this section may be made subject to such conditions or such limitations as to the exercise of all or any of the functions, or as to time or circumstances, as may be specified in the instrument of delegation.(6) Despite any delegation made under this section, the owners corporation may continue to exercise all or any of the functions delegated.(7) Any act or thing done or suffered by a strata managing agent while acting in the exercise of a delegation under this section:(a) has the same effect as if it had been done or suffered by the owners corporation, and(b) is taken to have been done or suffered by the owners corporation.
29 Can a strata managing agent exercise the functions of the chairperson, secretary and treasurer or the executive committee?
(1) The instrument of appointment of a strata managing agent may provide that the strata managing agent has and may exercise all the functions of the chairperson, secretary, treasurer or executive committee of an owners corporation or such of those functions as may be specified in the instrument.(2) However, the chairperson, secretary, treasurer and executive committee of an owners corporation may continue to exercise all or any of the functions that the strata managing agent is authorised to exercise.(3) Any act or thing done or suffered by a strata managing agent in the exercise of any function of the chairperson, secretary, treasurer or executive committee conferred on the strata managing agent in accordance with this section:(a) has the same effect as it would have had if it had been done or suffered by the chairperson, secretary, treasurer or executive committee, as the case may be, and(b) is taken to have been done or suffered by the chairperson, secretary, treasurer or executive committee, as the case may be.(4) This section is subject to section 32.
29A Functions that may only be delegated to member of executive committee or strata managing agent
(1) The following functions of an owners corporation, executive committee, chairperson, secretary or treasurer may not be delegated to or conferred on any other person unless the person is a member of the executive committee or a strata managing agent:(a) the preparation of estimates for the purposes of section 75,(b) the levying of contributions,(c) the receiving of, acknowledging of, banking of or accounting for money paid to the owners corporation,(d) having custody of any money paid to the owners corporation or making payments from any such money,(e) the taking out of insurance required or permitted by this Act,(f) the conduct of meetings of the owners corporation and handling of correspondence,(g) the maintenance of records required to be kept under this Act,(h) such other functions as may be prescribed by the regulations.(2) This section is subject to sections 24 and 32.Note. Section 24 enables some of these functions to be exercised by certain other specified persons.
30 Breach of duty by strata managing agent
If a strata managing agent has been delegated a duty by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force.
31 Strata managing agent to record exercise of functions
(1) A strata managing agent who exercises a function of an owners corporation must, immediately after its exercise, make a written record specifying the function and the manner in which it was exercised.(2) The strata managing agent must serve a copy of the written record on the owners corporation.
32 Exercise of functions of strata managing agent appointed by an Adjudicator
If a strata managing agent is appointed by an Adjudicator to exercise a function:(a) the function cannot, while the strata managing agent holds office, be exercised by any other person, and(b) anything done or suffered by the strata managing agent in the exercise of the function has the same effect as it would have if the function were exercised by the person who, but for paragraph (a), could have exercised it.
Division 3 Accountability of strata managing agent
33 Information may be required relating to strata managing agent’s trust account
An owners corporation may require a strata managing agent to provide the following information relating to the trust account that the agent is required to operate under the Property, Stock and Business Agents Act 2002:(a) the name and number of the account,(b) the name of the financial institution in which the account is current,(c) the balance in the account standing to the credit of the owners corporation on a specified date,(d) particulars of all cheques drawn on the account on behalf of the owners corporation as at that date and not presented and duly paid.
34 Information may be required relating to other accounts of the strata managing agent
An owners corporation may require a strata managing agent to provide the following information relating to any other accounts on which the agent operates in the exercise of functions of the owners corporation:(a) the names and numbers of the accounts,(b) the names of the financial institutions in which the accounts are current,(c) the balance in each of the accounts standing to the credit of the owners corporation on a specified date,(d) particulars of all cheques drawn on each of the accounts as at that date and not presented and duly paid.
35 Information may be required relating to money received by the strata managing agent from the owners corporation
An owners corporation may require a strata managing agent to provide:(a) full particulars relating to the payment of money to, or the receipt of money by, the agent on behalf of the owners corporation, and(b) if the money is not still held by the agent, the manner and time of disposal of the money.
36 Information may be required relating to transactions entered into by a strata managing agent for an owners corporation
An owners corporation may require a strata managing agent to provide full particulars as to any specified transaction that has been entered into by the agent on behalf of the owners corporation.
37 Procedure for requiring information from strata managing agent
(1) A requirement for information by an owners corporation under this Division must be made by notice in writing served on the strata managing agent.(2) The notice must specify a member of the executive committee to whom the information is to be delivered.(3) The strata managing agent must comply with the notice by providing a written statement, containing the information required, within 7 days after service of the notice.Maximum penalty: 20 penalty units.
(4) A person is not guilty of failing to comply with a notice under this section if reasonable cause for the failure is shown.(5) A strata managing agent must not knowingly provide information that is false or misleading in a material particular in a statement delivered in response to a notice under this section.Maximum penalty (subsection (5)): 20 penalty units.
38 Who is responsible for providing information if a strata managing agent ceases to hold a licence or dies?
If a strata managing agent ceases to hold a licence under the Property, Stock and Business Agents Act 2002 to carry on business as a strata managing agent or dies:(a) this Division (except sections 35 and 36) applies to any person who is required by that Act to maintain a trust account in connection with the business of the former licensee, and(b) this Division (except section 33) applies to any person who is required by that Act to preserve records kept by the former licensee,and so applies as if the person concerned were the strata managing agent.
39 Exemption for information relating to certain transactions
A strata managing agent or other person is not required to provide information under this Division in relation to a transaction that took place more than 3 years before service of the notice requiring the information.
40 Certain provisions of other Acts requiring agents to provide information not to apply to affairs of owners corporation
The provisions of section 101 of the Property, Stock and Business Agents Act 2002 do not apply to or in respect of a transaction if information about the transaction may be required to be provided to an owners corporation under this Division.Note. The provisions of section 101 of the Property, Stock and Business Agents Act 2002 enable a person directly concerned in a transaction with a licensee under that Act to require an itemised account of the transaction from the licensee.
Part 4A Others assisting in management—caretakers
(1) A caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation for the strata scheme concerned:(a) managing common property,(b) controlling the use of common property by persons other than the owners and occupiers of lots,(c) maintaining and repairing common property.(2) However, a person is not a caretaker if the person exercises those functions only on a voluntary or casual basis or as a member of the executive committee.(3) A person may be both a caretaker and an on-site residential property manager.(4) For the purposes of this Act, a person is taken to be a caretaker for a strata scheme if the person meets the description of a caretaker set out in this section, regardless of whether the title given to the person’s position is caretaker, building manager, resident manager or any other title.
40B How is a caretaker appointed?
(1) A caretaker is required to be appointed by an instrument in writing (a caretaker agreement) executed before or after the strata scheme commenced by the caretaker and:(a) by the original owner, if executed before the strata scheme commenced, or(b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme concerned, if executed after the strata scheme commenced.(2) Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires:(a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed by the original owner, or(b) when 10 years have expired after it commenced to authorise the caretaker to act under it, in any other case.(3) The functions of a caretaker under a caretaker agreement may be transferred to another person only with the approval of the owners corporation. A person to whom those functions are transferred is taken to be appointed as a caretaker by the caretaker agreement.(4) An owners corporation may terminate a caretaker agreement in accordance with its terms, and may approve a transfer of the functions of a caretaker, if authorised by a resolution at a general meeting of the owners corporation.
40C With which functions of an owners corporation can a caretaker assist?
(1) A caretaker may, in accordance with the caretaker agreement appointing the caretaker, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property.(2) However, the owners corporation may continue to exercise all or any of those functions, subject to the caretaker agreement.(3) A person is not a strata managing agent for the purposes of this or any other Act only because the person is a caretaker acting in accordance with a caretaker agreement.
Introductory note. This Part deals with by-laws for a strata scheme governing such things as the behaviour of residents of the scheme and the use of common property. The Part provides that strata schemes in existence before the commencement of the Part are to have the by-laws set out in Schedule 1 together with additional by-laws that may previously have been added to those by-laws and any amendments that may previously have been made to those by-laws by the relevant owners corporation. A new strata scheme may, if it chooses, adopt model by-laws or register its own by-laws. The by-laws for both existing and new schemes can be amended or repealed by the owners corporation.The Part places obligations on owners, mortgagees and covenant chargees in possession of a lot and lessees and occupiers of lots to comply with the by-laws.
The Part also contains procedural requirements for the making of certain by-laws and the amendment or repeal of by-laws.
Division 1 What by-laws apply to a strata scheme?
41 What by-laws apply to new strata schemes?
(1) This section applies to strata schemes that came into existence after the commencement of this section.(2) The by-laws in force for a strata scheme are the by-laws adopted by or lodged with the strata plan registered by the Registrar-General for the strata scheme, as in force at the date of lodgment, subject to any amendment, repeal or addition recorded by the Registrar-General under section 48.Note. Section 8 of the Strata Schemes (Freehold Development) Act 1973 and section 7 of the Strata Schemes (Leasehold Development) Act 1986 require that when a strata plan is submitted for registration it must be accompanied by the proposed by-laws for the strata scheme. Those by-laws are registered with the strata plan.
42 What by-laws apply to old strata schemes?
(1) This section applies to strata schemes in existence before the commencement of this section.(2) The by-laws set forth in Schedule 1 are the by-laws in force for a strata scheme, including any additional by-laws, or any amendments or repeals relating to those by-laws, that have been registered for the strata scheme in accordance with:(a) Division 3 of this Part, or(b) Division 1 of Part 4 of the Strata Schemes (Freehold Development) Act 1973 as in force immediately before its repeal, or(c) Division 1 of Part 4 of the Strata Schemes (Leasehold Development) Act 1986 as in force immediately before its repeal.
43 What can by-laws provide for?
(1) By-laws may be made in relation to any of the following:safety and security measures
details of any common property of which the use is restricted
the keeping of pets
parking
floor coverings
garbage disposal
behaviour
architectural and landscaping guidelines to be observed by lot owners
matters appropriate to the type of strata scheme concerned.
(2) Subsection (1) does not limit the matters for which by-laws may be made.(3) The regulations may prescribe model by-laws which may be adopted as the by-laws for a strata scheme.(4) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
Division 2 How are the by-laws enforced?
44 Who is required to comply with the by-laws?
(1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and(b) contained mutual covenants to observe and perform all the provisions of the by-laws.(2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.(3) In this section, lessee means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.
45 How can an owners corporation enforce the by-laws?
(1) An owners corporation may serve a notice, in a form approved by the Director-General, on the owner or occupier of a lot requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.(2) A notice cannot be issued under this section unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation or the executive committee of the owners corporation.(3) Subsection (2) does not apply to the issue of a notice under this section by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.Note. The Tribunal may impose a pecuniary penalty on a person for failing to comply with a notice under this section (see section 203).
46 How does a lessee get information about the by-laws?
(1) If a lot or common property in a freehold strata scheme is leased, the lessor must provide the lessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.Maximum penalty: 1 penalty unit.
(2) If a lot or common property in a leasehold strata scheme is sublet, the sublessor must provide the sublessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.Maximum penalty: 1 penalty unit.
(3) The copy of the by-laws or strata management statement must be provided to the lessee or sublessee within 7 days after the lessee or sublessee becomes entitled to possession of the lot or common property.(3A) If a lot or common property in a freehold scheme is leased and the by-laws are amended, the lessor must provide the lessee with a further copy of the by-laws, within the time and in the manner required by this section.Maximum penalty: 1 penalty unit.
(3B) If a lot or common property in a leasehold strata scheme is sublet and the by-laws are amended, the sublessor must provide the sublessee with a further copy of the by-laws, within the time and in the manner required by this section.Maximum penalty: 1 penalty unit.
(3C) Any further copy of by-laws required to be provided under subsection (3A) or (3B) must be provided to the lessee or sublessee within 7 days after the amendment of the by-laws is recorded by the Registrar-General under section 48 (1) (b).(4) The copy of the by-laws or strata management statement (including any further copy of by-laws that have been amended) must be:(a) served personally on the lessee or sublessee, or(b) if the lease or sublease relates to a lot—served on the lessee or sublessee in any manner allowed by this Act for service of a document on the occupier of a lot, or(c) if the lease or sublease relates to a lot or common property that is fully enclosed by walls or other structures—left in a conspicuous position at the lot or on the common property.(5) Subsections (1), (2), (3A) and (3B) do not apply if the strata scheme concerned is part of a community scheme or the lessee or sublessee is the owner of a lot in the strata scheme concerned.
Division 3 Amendment or repeal of by-laws
47 Can an owners corporation add to or amend the by-laws?
An owners corporation, in accordance with a special resolution, may, for the purpose of the control, management, administration, use or enjoyment of the lots or the lots and common property for the strata scheme, make by-laws adding to, amending or repealing the by-laws for the strata scheme.
48 What steps must an owners corporation take to make an amendment effective?
(1) An amendment or repeal of a by-law or, a new by-law, has no force or effect until:(a) the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900, in the Registrar-General’s office, and(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.(2) A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.
(1) By-law cannot prevent dealing relating to lot
No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.(2) By-law resulting from order cannot be changed
If an order made under Chapter 5 has effect as if its terms were a by-law, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution and, in the case of a strata leasehold scheme, with the consent of the lessor of the scheme.(3) By-law cannot restrict children
A by-law for a residential strata scheme has no force or effect to the extent to which it purports to prohibit or restrict persons under 18 years of age occupying a lot. This subsection does not apply to a by-law for a strata scheme for a retirement village or housing exclusively for aged persons.(4) By-law cannot prevent keeping of guide dog
A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of a dog used as a guide or hearing dog by an owner or occupier of the lot or the use of a dog as a guide or hearing dog on a lot or common property.
50 Restrictions on by-laws during initial period
(1) An owners corporation must not, during the initial period, make, amend or repeal a by-law in such a manner that a right is conferred or an obligation is imposed on one or more, but not all, owners or in respect of one or more, but not all, lots.(2) An owners corporation may recover from the original owner, as damages for breach of statutory duty, any loss suffered by the owners corporation as a result of a contravention of this section.(3) An owner may recover, as damages for breach of statutory duty, any loss that has been suffered by the owner as a result of a contravention of this section.(4) It is a defence to an action under this section for damages if it is proved that the original owner:(a) did not know of the contravention on which the action is based, or(b) was not in a position to influence the conduct of the owners corporation in relation to the contravention, or(c) used due diligence to prevent the contravention.(5) A remedy available under this section does not affect any other remedy.
Division 4 Special provisions for by-laws conferring certain rights or privileges
(1) This Division applies to a by-law conferring on the owner of a lot specified in the by-law, or the owners of several lots so specified:(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),and to a by-law that amends or repeals such a by-law.(2) This Division does not prevent an owners corporation making a by-law in accordance with section 54 of the Community Land Management Act 1989.
52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:(a) with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and(b) in accordance with a special resolution.(2) A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.(3) After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.
53 Can a by-law contain conditions?
A by-law to which this Division applies may confer rights or special privileges subject to such conditions as may be specified in the by-law (for example, a condition requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation).
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.(2) Any money payable under a by-law to which this Division applies by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements unless the by-law otherwise provides.(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
55 What is the effect of a by-law?
(1) A by-law to which this Division applies, while it remains in force, continues to operate for the benefit of, and is binding on, the owner or owners for the time being of the lot or lots specified in the by-law.(2) If a person becomes owner of a lot at a time when, under a by-law or under this subsection, a former owner is liable to pay money to the owners corporation, the person who becomes owner is jointly and severally liable with the former owner to pay the money to the owners corporation.(3) Any money payable by an owner to the owners corporation under a by-law to which this Division applies or under subsection (2) may be recovered, as a debt, by the owners corporation.
Division 5 Special provisions for strata schemes that are part of community schemes
This Division applies to a strata scheme that is part of a community scheme under the Community Land Management Act 1989.
58 What happens if by-laws are inconsistent with management statements?
If the by-laws for a strata scheme to which this Division applies are inconsistent:(a) with the community management statement, or(b) if the strata scheme is also part of a precinct scheme under the Community Land Development Act 1989—with the precinct management statement,the management statement prevails.
59 Obligation of lessee to comply with management statements
(1) In a lease of a lot or common property in a strata scheme to which this Division applies there is implied an agreement by the lessee to comply with:(a) the community management statement, and(b) if the strata scheme is also part of a precinct scheme under the Community Land Development Act 1989—the precinct management statement.(2) (Repealed)
60 How does a lessee get information about management statements?
If it is proposed to grant a lease of a lot or common property in a strata scheme to which this Division applies, the lessor must annex the following to the copy of the lease submitted for execution by the lessee:(a) a copy of the community management statement,(b) if the strata scheme is also part of a precinct scheme under that Act—a copy of the precinct management statement.Maximum penalty: 1 penalty unit.