Part 5Introductory 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 The by-laws for both existing and new schemes can be amended or repealed by the owners corporation.The Part places obligations on owners, mortgagees and covenant chargees in possession of a lot and lessees and occupiers of lots to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.