When should your committee enforce a by-law using a contravention notice?
Find when your committee should enforce a by-law by using a contravention notice in strata:
In a strata property, people from various backgrounds live close to one another and share common property and amenities so it’s not surprising that thoughtless or inconsiderate actions easily affect others around them.
By-laws or rules assist owners and residents to act in a considerate way and be more conscious of others in their community. When they are not followed, it can create problems and frustration.
When an owner or resident continues to breach by-laws or rules even after being approached about the problem by other owners or strata committee members, a formal notice to rectify the breach may be issued. This is known as a Notice to Comply with a By-Law in New South Wales, a Notice to body corporate of a contravention of a body corporate by-law in Queensland, and a Final Notice to Rectify a Breach in Victoria.
Types of contravention notices:
In Queensland, there are two types of notices:
- A continuing contravention notice:
This is given if the body corporate believes the person who has breached the by-law may need a certain time to address the breach. For example, if an owner has made an unapproved renovation on the property that affects the appearance of the lot, they may be issued with a continuing contravention notice. The notice should explain the issue sufficiently and offer a time period to fix the problem.
- A future contravention notice:
Often issues for complaints of noise and unruliness where by-laws are breached repeatedly. There are chances of the problem continuing in the future. In such cases, the body corporate may issue this kind of a contravention notice to the rule-breaker.
Why are formal breach notices important?
All owners and occupiers in a strata scheme, including tenants and visitors, are legally obliged to comply with the by-laws of the scheme. Formal notices to comply lets the rule breaker know that their activities are being taken seriously and that the breach has legal consequences.
Who can be issued a by-law breach or contravention notice?
Any owner or resident who has breached or is continuously breaching a by-law in the property can be sent a notice. If a tenant or guest is at fault for by-law breach, the notice can be issued to them directly, but they should take care to keep the owners in the loop as well. The owner or landlord is ultimately responsible for the behaviour of their tenants and guests living in strata property.
PICA Group’s five top tips for dealing with by-law or building rule breaches:
- Have a friendly, honest conversation with your neighbour
If you feel comfortable in doing so, have a chat with your neighbour or rule breaker. They may be simply unaware of the by-laws or the consequences of their actions on community living. Helping them understand the situation, discussing their options, and offering feasible alternatives may help them see the bigger picture.
Suzie is partially deaf and consequently has her TV volume up loud to compensate. She often falls asleep at night in front of her TV, which is mounted to the wall. Her neighbours have complained that the TV, which is often on until 3am, disturbs their peaceful enjoyment of their property. Her neighbour approaches her about the noise and there is an agreement between the neighbours that she sets a timer that will turn off her TV at 11pm.
- If the problem persists, issue a written warning
When an owner or occupier has ignored requests from other residents, or if the impacted person feels uncomfortable about approaching them directly, the strata committee should try to speak to the person directly or issue an informal letter or email requesting the person to cease the activity that is in breach of the by-law or rule. It is advisable to communicate through an articulate committee member and seek guidance from your strata or body corporate manager before acting.The persons impacted and the strata committee should keep records of the instances of breach and retain any evidence in the form emails, photos, etc. This will assist in cases where the matter is taken before a law enforcing body or external dispute resolution service.
Suzie’s neighbours can still hear the TV late into the night as she decided that she didn’t want to change her lifestyle and never used the timer. They are constantly awoken by loud noises of late-night TV. They request that the committee approaches her. She confirms that she wants to be able to watch TV loud late into the night but as a compromise, agrees to buy a sound bar which removes the noise away from the wall.
- If written warnings are ignored, issue a formal notice to rectify the breach
If informal warnings are being continuously ignored and the problem persists, the strata committee can issue, or request that the strata manager issue, a formal notice to rectify the breach. The notice should acknowledge the breach formally, must contain a copy of the specified by-law, explain the impact of the breach on the community and its residents, and outline the consequences of breaching the by-laws.In New South Wales, the notice can’t be given without a majority vote at a meeting of the owners. However, the owners corporation can delegate their responsibility for issuing notices to comply to the strata committee or the strata managing agent. Check with your strata manager on whether the responsibility for issuing notices to comply rests with the strata committee (or strata manager) before acting.
Suzie never buys a sound bar and continues to play her TV loud until the early hours of the morning. Her neighbours are suffering from constant interruption to their sleep. The strata committee has sent several emails to her, but she continues to ignore their requests. They consult with their strata manager and the strata manager issues her a formal notice to comply.
- If conduct continues and warnings are ignored, the next step is to escalate the problem
If the person does not comply after being issued with a formal notice to comply or contravention notice, and the dispute remains unresolved, the owners corporation or body corporate may take up the matter with the relevant state governing body or tribunal for further action.
In New South Wales
Fair Trading NSW provides a free mediation service which may assist in dispute resolution. If an issue is not resolved by mediation, an application can be made to the NSW Civil and Administrative Tribunal (NCAT). If the tribunal believes that there has been a breach of a by-law and the notice was given validly, they can issue a penalty. The owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine.
Applicants must first attempt to resolve the dispute by conciliation with the Office of the Commissioner for Body Corporate and Community Management (BCCM) before seeking adjudication with the Queensland Civil and Administrative Tribunal (QCAT).
The Model Rules set out in the Owners Corporations Regulations 2018 has a procedure in place for managing grievances. This must be followed before matters are taken further to either the Dispute Settlement Centre of Victoria (DSCV) or the Victorian Civil and Administrative Tribunal (VCAT).
- Resolving disputes in emergency cases
In the case of an emergency, where a by-law breach needs to be resolved urgently, the strata committee should approach their strata manager for guidance on the matter. In emergency situations, there are other powers that enable strata managers or committees to act swiftly to respond in a timely manner.
If you’d like to find out more on how to deal with common strata problems 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.