What can be done when someone in your strata property breaks by-laws?

What can be done when someone is breaking by laws in strataArticle header image

Strata by-laws and building rules help govern strata and community titled properties to promote harmonious living, so it’s important to deal with contraventions promptly.

In addition to being aligned with state laws, by-laws ensure residents and owners are on the same page regarding what’s permitted and what’s not.

Here are eight things you can do if someone is breaking by-laws in your strata property:

Have an honest conversation
Ask your strata committee or manager to assist
Keep records and evidence of the by-law breach
Issue a formal notice of breach
Handle emergencies from by-law breach
Understand why your strata committee may refuse to act
Resolve dispute in court
Amend strata by-laws

1. Have an honest conversation

If someone is breaking by-laws in your strata property, start by having a friendly, honest conversation. You’d be surprised at how much open communication helps in most cases. Whether your neighbour is violating parking rules, being noisy, leaving their pets unsupervised or hosting unruly guests, you can always let them know how their actions are affecting you and other owners. It’s possible they’re simply unaware of the consequences of their actions, or that they are in breach of by-laws. Make sure your strata committee or strata manager, provides owners, tenants and residents with a copy of the by-laws or building rules.

2. Ask your strata committee or manager to assist

If direct communication isn’t doing the trick, you can always request the strata committee or your strata manager to help resolve the matter. Having an unbiased party negotiate matters can help sort issues in a more formal manner, and they may already have a protocol in place to deal with any conflict situations that may arise. Your strata committee can also explain the nuances of community living, and make them aware of the implications of breaching by-laws or building rules.

3. Keep records and evidence of the by-law breach

If by-laws are breached intentionally and continuously, make sure you keep a record of the breach. Your record should include who, what, how, when, and for how long it has been happening. Retaining evidence in the form of documents and photographs or video helps to formalise the matter if the breach needs to be escalated.

4. Issue a formal notice of breach

When verbal warnings fail, your strata committee can issue a formal Notice to Comply with a by-law and ask them to cease the activity that’s creating trouble. If the by-law is being breached by a resident, the notice should be addressed to them. The owner or landlord, as well as the property manager, should also be issued a copy of the breach notice to keep them in the loop.

In New South Wales
The strata committee can issue a Notice to Comply with a By-Law to the by-law-breaker outlining the notice of breach.

In Queensland
The body corporates are required to issue a By-law Contravention Notice to the person breaching the by-law.

In Victoria
The owners corporation can issue a Breach Notice. If the person continues to break the rules, a final notice in writing may be issued requiring the breach to be resolved in 28 days and if it is not, VCAT action may be taken.

5. Handle emergencies from by-law breach

When an emergency arises due to someone breaking strata by-laws that may cause injury, threat to life or damage to property, the strata committee can make a dispute resolution application without issuing a contravention notice of breach.

6. Understand why your strata committee may refuse to act

The strata committee must enforce the by-laws if they “reasonably believe” there has been a breach. The committee or body corporate may have to demonstrate that it is reasonable in the circumstances of the alleged breach to not enforce the by-laws. They should provide clear reasons regarding their decision to the affected owners and examine the effectiveness of the by-laws.

7. Resolve dispute in court

If all verbal and formal warnings from the strata committee or owners corporation are being ignored and by-laws are being continuously breached creating a nuisance for the property, your owners corporation can refer to the state tribunal or governing office (e.g. Queensland Government Body Corporate and Community Management, NSW Office of Fair Trading, or Consumer Affairs Victoria) or a magistrate who can then issue fines and penalties depending on the seriousness and frequency of the offence.

In New South Wales
If the conduct and problem continues and the strata committee is unable to resolve it, then the next step is usually to escalate the problem to Fair Trading for mediation, and if this also fails, the owners corporation can make an application to the NSW Civil and Administrative Tribunal (NCAT).

In Queensland
After issuing a contravention notice, the body corporate can enforce a by-law further by either lodging a dispute resolution application with the BCCM Office or seek to have a fine applied at the Magistrate’s Court. QCAT can hear appeals of adjudicators’ orders. They do not deal with by-law enforcement.

In Victoria

If a breach of by-laws cannot be resolved through the owners corporation Consumer Affairs Victoria can help with mediation. If this also fails, you may be able to apply to VCAT about alleged breaches of the Owners Corporations Act, regulations or rules. Examples of disputes that owners corporations, lot owners, former lot owners or occupiers can apply about include car parking, excessive noise or rubbish left on common property.

8. Amend strata by-laws

If your by-laws appear to be unfair, obstructive, impractical, outdated, ineffective or downright unlawful, you can work towards having them amended through a special resolution in an annual general meeting or extraordinary general meeting with majority owner votes. Make sure your new by-laws are registered in your state within the required time so they become functional.

In New South Wales
The new or amended by-laws are required to be registered with the NSW Land Registry Services within six months of drafting them. Under the recent strata reforms, the change in by-laws must be lodged in the form of a consolidated version that incorporates the change (Clause 24 Strata Schemes Development Regulation 2016). This requirement ensures the folio for the common property concisely records in a single and readily accessible instrument all the by-laws that affect the scheme.

In Queensland
The body corporate must register the new by-laws with the Titles Registry Office within three months of passing the general meeting motion to change the by-laws.

In Victoria
Any changes to building rules can be approved only after the owners corporation lodges a copy of the consolidated rules with Land Use Victoria.

If you’d like to find out more on managing by-laws for your strata property, download your free Community Living guide on by-laws. Or for a consultation to review your by-laws by our Kemps Petersons Legal team, click here.