1. Why do I need a by-law?
By-law 5 of the model by-laws in Schedule 1 of the Strata Schemes Management Act 1996 (“the Act”) prevents an owner or occupier from “damaging or defacing” any structure that forms part of the common property, unless the written approval of the owners corporation is first obtained.
If the works are of a “minor” nature an ordinary resolution motion can be passed at a general meeting of the owners corporation. An ordinary resolution requires a simple majority vote to pass. Minor renovations include affixing nails or screws to hang pictures or cupboards, or replacing items such as taps, bathtubs and sinks in a bathroom or kitchen.
If works involve additions to common property or change the character of common property, the owner must seek approval under section 52 of the Act for the creation of a new by-law.
Additions would include improvements and alterations such as the installation of enclosures and awnings, air-conditioners, flooring, fences and any other items affixed or attached to common property. Removal of items such as load bearing walls within a lot also affect the structure of the building and require the creation of a new by-law for the lot. Removal of a load bearing wall will certainly require certification from an engineer to the effect that the removal of the wall will not affect the structural integrity of the building.
Without a section 52 of the Act by-law, the owners corporation cannot grant the owner(s) exclusive use over the common property the subject of the works or grant special privileges to the owner(s) to carry out the works in respect to the common property areas. Further, without such a by-law, the owners corporation’s cannot transfer the owners corporation’s obligations of maintenance and repair of the common property to the owner(s).
2. Do I need council consent?
Do your homework first. Check with your local council to see if your proposed works require a development application to be lodged with council. Some works which may require development consent from council include using a common property attic space as a habitable area, installing windows which penetrate through the roof, major external renovations to common property, etc. If your proposed works the subject of your development application affect common property, the owners corporation’s consent to your development application is a pre-requisite before council will consider your development application for your works.
3. Do I need to pay the owners corporation any money in return for the grant of an exclusive use area?
It is sometimes difficult to know whether or not an owner is expected to pay the owners corporation some money for the grant of an exclusive use area over common property. In our experience, exclusive use by-laws granting exclusive use to an owner over a common property car space, an attic space for habitable purposes and a common property garden/backyard area may require the payment of money in return for the grant of the exclusive use right. If you have any concerns, you should get legal advice sooner rather than later. If you do not know how much the exclusive use area is worth, you should consider hiring and paying a registered valuer to obtain a value of the exclusive use area.
4. Once I get the by-law drafted can I start the works?
No. You must have the written consent of the owners corporation before commencing works and the by-law must be passed by special resolution at a general meeting of the owners corporation. The by-law should also be registered prior to commencing the works, as the by-law is not effective until it is registered on the certificate of title of the common property of the scheme.
5. What information will we need to register the by-law?
In order to assist us in lodging your by-law for registration, we will need a copy of the owners corporation’s minutes of meeting at which your by-law was passed and the owners corporation’s original certificate of title in order to record the new by-law dealing.
6. How long does it take to register a by-law?
Generally speaking, it takes approximately 7 to 10 days to have your by-law registered at Land and Property Information, New South Wales.
7. What information will we need to prepare the by-law?
In order to assist us in preparing the by-law for your lot we will need copies of your strata plan, the scheme’s current by-laws, your lot number, specifications of the works being done, any drawings or diagrams and the full name of the lot owner for the by-law consent form.
8. What will happen if I do not get a by-law?
If an alteration or addition is made to your lot that affects or changes the character of the common property, and you have not received the owners corporation’s consent for that alteration or addition, you may be in breach of the by-laws. The owners corporation may take legal action against you to have that alteration or addition removed and the common property restored back to its original state and condition. However, the owners corporation would be required to first attempt mediation with the lot owner before embarking upon an application for adjudicator’s orders. Please note that an adjudication should not be confused with an arbitration. An adjudication is decided on the papers by legal submission as opposed to a hearing.
9. What if the owners corporation refuses to make my by-law?
If the owners corporation refuses to grant approval to carry out your works, you should first consider making enquiries with your executive committee you may attempt mediation with the owners corporation. If that process is unsuccessful you should seek legal advice on your prospects before lodging an application with an adjudicator to seek an order to make the by-law approving the works. It is important to get these kinds of application right the first time.
10. What makes our by-law unique?
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Fixed cost for preparation of the by-law
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Simple language
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Provides a detailed description of the works being made
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Includes detailed conditions to be complied with prior to commencement of the works, during the works being undertaken, post-completion and ongoing obligations
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Includes repair, maintenance and indemnity provisions regarding improvements/works
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Includes a by-law consent form for the lot owner’s completion
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Fast turnaround time – you will receive your draft by-law within 3 business days from acceptance of our quote and payment of moneys in trust
If you need assistance with the drafting and registration of your by-law or require legal advice on a by-law that has been refused by your owners corporation, please feel free to contact us on (02) 8710 3430 or e-mail Michael Pobi at michael.pobi@pobilawyers.com
Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.
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