This Q&A from a WA Lot Owner is about complying with bylaw breaches.
Table of Contents:
- QUESTION: Can a lot owner be fined for a first time breach notice? Due to the outstanding fine, the strata company has also refused the request for a new fob.
- QUESTION: I’ve been served a by-law breach for building a small structure on my survey strata lot eight years ago. Is it too late for any enforceable action? Is the breach notice valid?
- QUESTION: Some of the owners on the strata council are breaching by-laws and not enforcing them. Can an owner serve a by-law breach notice to a council of owners member for not complying with a by-law?
- QUESTION: We have a number of tenants who have been served bylaw breach notices but our Strata Managers say we can’t take them to SAT because our Strata Company does not have a Council of Owners to instruct Strata Management to take action. What action can I take as a lot owner to get Strata to act on the breach notices?
- QUESTION: Is it within the power of the council of owners to serve a breach notice stating the children of an alleged offender are not permitted to use the pool for 6 months?
- QUESTION: Are there any new bylaws or parts of the legislation which protect my right as a homeowner in circumstances where other residents do not respect my property or right to peace and quiet?
- QUESTION: Is the strata manager responsible for tenants and owners complying with the strata bylaws?
Question: Can a lot owner be fined for a first time breach notice? Due to the outstanding fine, the strata company has also refused the request for a new fob.
My daughter owns an apartment. A few months ago, she celebrated her 30th birthday with 15 guests at the apartment. They ensured they were inside the unit with doors shut by midnight.
A week after the party, she received a noise by-law breach notice with a $150 fine. This was their first breach notice.
My daughter questioned the fairness of the fine and the breach for a first offence. She has not received a response.
When she applied for a replacement fob and key, she was told they couldn’t get another fob or key due to the outstanding fine.
Is the fine valid? Should a lot owner’s request for a replacement fob and key be refused, essentially interfering with access to their home?
Answer: The Act does not provide for a penalty to be applied by a strata company.
Section 47 of the Strata Titles Act 1985 deals with the enforcement of scheme by-laws. Section 47(5) provides for a penalty to be applied by the State Administrative Tribunal if the Tribunal is satisfied that a person has contravened the scheme by-laws. The Act does not provide for a penalty to be applied by a strata company. The strata company would have to apply to the State Administrative Tribunal for any penalty to be applied.
The Tribunal’s power to impose a penalty is subject to the following conditions:
- a penalty must not be imposed on the strata company;
- a penalty may only be imposed if the Tribunal is satisfied that the breach is serious enough or the breach has occurred on 3 separate occasions and breach notice in accordance with the Act has been given.
- the penalty must not exceed an amount fixed by the regulations;
- a daily penalty may be imposed for a continuing contravention only if that is authorised by the regulations
At this time, regulation 58 provides for a maximum penalty that may be applied by the tribunal of $2000
Often, the strata company may incur a cost associated with the preparation of a breach notice. Should your strata company have in place a cost recovery by-law, it is possible that the strata company could recover the cost for the preparation of the breach notice from the responsible lot.
It is reasonable for the strata company to control and manage access to the building and common property for the benefit of all lot proprietors. My opinion is that it would be unreasonable for the strata company to prevent access to the common property / withhold issuing of access devices on the basis of an unpaid penalty issued for a breach of by-law. My opinion is based on the strata company not having lawful authority to impose a penalty for a breach of by-law and not having a valid reason to restrict access.
Luke Downie
Realmark
E: [email protected]
P: 08 9328 0999
This post appears in the November 2023 edition of The WA Strata Magazine.
Question: I’ve been served a by-law breach for building a small structure on my survey strata lot eight years ago. Is it too late for any enforceable action? Is the breach notice valid?
What is the time limit on a breach notice issued for an alleged by-law breach?
My strata council claims I committed a by-law breach well over eight years ago by building a small structure on my survey strata lot.
Until recently, no objection has been made. Is it too late for any enforceable action? Is the breach notice valid?
Answer: It was a breach eight years ago, but it continues to be a breach today.
If the breach consists of a structural alteration on your lot, the breach of the by-law is likely a continuing breach. It was a breach eight years ago, but it continues to be a breach today. The six-year period is counted from today because you are in breach of the by-law today, and the breach notice would not be out of time.
It is different from a breach of a by-law concerning excessive noise that you breached eight years ago at your 2014 New Year’s Eve party. It would be too late for your strata company to act on that breach today. It was a once off breach and not a continuing breach.
However, the fact that your strata company has done nothing about the breach for eight years may provide you with other defences against a breach notice.
In JTA Le Roux and The Owners of Bunker Bay Resort Strata Scheme [2023] WASAT 13 an owner made structural alterations to their lot in breach of a by-law requiring that the residence be constructed according to plans approved by the strata company. The owner applied to the State Administrative Tribunal for an order that the strata company must be taken to have approved the structural alteration with a resolution without dissent and was successful on the facts in that case.
You may also have other defences, but it is difficult to deal with them without knowing the nature of the by-law breach, the wording of the by-law and the relevant history of the matter over the past eight years.
Eduard Ferreira
Douglas Cheveralls Lawyers
E: [email protected]
P: 08 9380 9288
This post appears in the November 2023 edition of The WA Strata Magazine.
Question: Some of the owners on the strata council are breaching by-laws and not enforcing them. Can an owner serve a by-law breach notice to a council of owners member for not complying with a by-law?
Answer: The Act notes that the strata company has the role of performing the function of enforcing, and this action needs to be taken by the strata company, which is represented by the council of owners.
Answer: The Act notes that the strata company has the role of performing the function of enforcing, and this action needs to be taken by the strata company, which is represented by the council of owners.
Section 112 of the Strata Titles Act 1985 notes:
112. Compliance with scheme by-laws
A strata company has the function of complying with the scheme by-laws and enforcing compliance with those by-laws by others to whom they apply.
The Act notes that the strata company has the role of performing the function of enforcing, and this action needs to be taken by the strata company, which is represented by the council of owners. A majority of the council of owners would need to agree, and then they or the strata manager issue the breach, as noted in Schedule 1 Governance By-laws that:
4 . Constitution of council
- The powers and duties of the strata company must, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the council of the strata company…
Moreover, the council of owners must act in good faith. If a council of owners member breaches a by-law, this matter should be brought to their attention. They must then vote in a manner that prioritises the strata company’s interests over their own to avoid potential liability.
Jamie Horner
Empire Estate Agents
E: [email protected]
P: (08) 9262 0400
This post appears in Strata News #667.
Question: We have a number of tenants who have been served bylaw breach notices but our Strata Managers say we can’t take them to SAT because our Strata Company does not have a Council of Owners to instruct Strata Management to take action. What action can I take as a lot owner to get Strata to act on the breach notices?
Answer: As an Owner, you can still make an Application to the SAT but I would suggest getting legal advice.
Shane White
Strata Title Consult
E: [email protected]
This post appears in Strata News #583.
Question: Is it within the power of the council of owners to serve a breach notice stating the children of an alleged offender are not permitted to use the pool for 6 months?
If a breach notice is issued and states that the children of the alleged offender are not permitted to use the pool for 6 months, is this within the power of the council of owners?In this instance, the children were in no way associated with the alleged breach. I assume it is intended as an indirect penalty to the alleged offender.
Answer: The strata company has a duty to be fair and reasonable to all residents.
This inquiry brings up a number of technical issues about the strata company’s responsibilities.
I would refer to section 119 of the STA (Strata Company Procedures);
119 Objectives
- In performing its functions, a strata company is to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme —
- unfairly prejudicial to or discriminatory against a person; or
- oppressive or unreasonable.
- In achieving that objective, a strata company —
- must take into account any failure of a person to act consistently with this Act or the scheme by-laws; and
- must consider the merits of any proposal put to it and the options that are reasonably available in any particular circumstances; and
- must be aware that —
- a resolution or other conduct may be overturned for failure to meet that objective despite the fact that it reflects the will of the majority of members of the strata company as expressed through the exercise of their voting powers; and
- the fact that a person has chosen to become the owner of a lot does not prevent the person challenging the performance of a function for failure to meet that objective.
This section requires the strata company to act fairly to all residents. The strata company must not be unfairly prejudicial, discriminatory, oppressive or unreasonable. For every decision made the strata council should be able to back it up with their reasons for coming to that decision.
83. Use and enjoyment – (General)
The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.
Section 83 is one of the new sections in the STA which was formerly part of the Schedule 1 By-law 1(2) which has since been deleted. Each owner is entitled to use and enjoy the common property without that use being unreasonably interfered with.
This brings us to section 112 where the strata company is responsible for ensuring compliance and enforcement of the by-laws.
112. Compliance with scheme by-laws – (Miscellaneous Powers)
A strata company has the function of complying with the scheme by-laws and enforcing compliance with those by-laws by others to whom they apply.
If it can be established that there was a clear breach of a by-law, then the following process is required to be followed by issuing a “written notice” otherwise commonly known as a breach notice as identified in section 47 below.
47. Enforcement of scheme by-laws – (Scheme By-Laws)
- A strata company may —
- give a written notice to a person alleged to have contravened the scheme by-laws; or
- apply to the Tribunal under this section for an order enforcing scheme by-laws if —
- the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by-laws; or
- the person has contravened the particular scheme by-law on at least 3 separate occasions; or
- the person has been given notice under paragraph (a) and has contravened the notice.
- A written notice given by a strata company to a person alleged to have contravened the scheme by-laws must —
- specify the particular scheme by-law that is alleged to have been contravened; and
- specify the particular facts relied on as evidence of the contravention; and
- specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by-law; and
- contain an explanation of the effect of this section in terms set out in the regulations.
In summary
- What by-law was breached?
- Is the by-law valid or enforceable?
- Is the enforcement reasonable under the conditions of section 119?
- What role did the children play in this?
- Has the “written notice” been sent in accordance with the requirements of the Act?
Please note that the former Schedule 2 by-law 5 “Children playing on common property in building” was deleted by the writers of the legislative changes as it was deemed to be discriminatory.
It is not known if the Strata Company has a Strata Manager or operates with a Volunteer Strata Manager but either position requires a knowledge of the Act.
Please refer to section 146 General duties and conflict of interest;
146. General duties and conflict of interest
- A strata manager of a strata company —
- must at all times act honestly and in good faith in the performance of the strata manager’s functions; and
- must at all times exercise a reasonable degree of skill, care and diligence in the performance of the strata manager’s functions; and
- must have a good working knowledge of this Act;
It is not possible for me to ascertain if a breach did occur, if the written notice was warranted or if it was sent correctly; but it would appear that banning the “children” may be unreasonable.
This all serves as a reminder that “with power comes great responsibility” and the strata company has a duty to be fair and reasonable to all residents. I don’t know which movie that quote came from but it seems appropriate in this instance.
Shane White
Strata Title Consult
E: [email protected]
This post appears in Strata News #512.
Question: Are there any new bylaws or parts of the legislation which protect my right as a homeowner in circumstances where other residents do not respect my property or right to peace and quiet?
Answer: Use of common property, schedule 2 bylaw 2, an owner or occupier of a lot must use and enjoy the common property in such a manner as not to unreasonably interfere with the use and enjoyment of the common property by other owners or occupiers of lots, or of their visitors.
Everybody’s entitled to have a right to peaceful enjoyment.
The bylaw about peaceful enjoyment has been moved to Schedule 2 as it is a conduct bylaw, not a governance bylaw. Use of common property, schedule 2 bylaw 2, an owner or occupier of a lot must use and enjoy the common property in such a manner as not to unreasonably interfere with the use and enjoyment of the common property by other owners or occupiers of lots, or of their visitors. Or not use the common property in a manner that causes a nuisance to an occupier of another lot. Owners must take all reasonable steps so that the visitors comply with the bylaws – e.g. not obstruct lawful use of the common property.
There is a provision in the bylaws. If you have a complaint, you need to inform the Strata Manager because there’s a requirement for written notice. A written notice (sometimes referred to as a breach notice) informs the offending party that they have breached a particular bylaw by doing whatever it is they did on whatever date.
The outcome of this is, if they do it again they will suffer the penalties that SAT can apply. There needs to be three of these written notices to be sent to the offending person or occupier. Tenants are also bound by these ByLaws and they could be taken to SAT, possibly with the owner of a lot, and SAT can make penalties payable.
Shane White
Strata Title Consult
E: [email protected]
This post appears in Strata News #469.
Question: Is the strata manager responsible for tenants and owners complying with the strata bylaws?
Is the strata manager responsible for tenants and owners complying with the strata bylaws?
We have a tenant who constantly parks several vehicles on common property. The tenant’s landlord refuses to ensure that his tenant complies with very clear guidelines set out in the bylaws. The strata manager suggest that it is the lot owner’s responsibility to take the tenant and/or landlord to SAT! Is this not the strata manager’s responsibility?
Answer: Firstly the strata manager and the strata company are not responsible for compliance by the tenant. That responsibility rests with the lot owner and/or their property manager.
Firstly the strata manager and the strata company are not responsible for compliance by the tenant. That responsibility rests with the lot owner and/or their property manager. The strata company has a relationship with the lot owner, not the tenant.
The answer to the second part of your question is yes, any owner can refer the matter to the SAT. From your comments, the owner in question is not complying with the by-laws and as such is contriving the by-laws. So too is his tenant.
I would suggest the strata manager and the council of owners work together to issue the required contravention notices and as soon as practical refer the matter to the SAT. The owners who are concerned about this would need to provide the necessary evidence, i.e. dates, photos as this will be required if it goes to SAT.
Under the act, it is the responsibility of the strata company to manage, maintain and control the common property and that role is taken on by the council of owners.
Also, if any application is made to the SAT I would suggest that the tenant is included in that application provided their details are known. There is a provision under the act for the strata roll to have tenant details, however it’s not mandatory, only if the owner has provided the information.
Brian Rulyancich
StrataTAC
T: 0428 970 067
E: [email protected]
This post appears in the December 2020 edition of The WA Strata Magazine.
Have a question about complying with bylaw breaches or something to add to the article? Leave a comment below.
Read next:
Visit Renting / Selling / Buying Strata Property OR Strata Information WA
Looking for strata information concerning your state? For state-specific strata information, take a look here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
Leave a Reply