5.2.5 Enforcing by-laws | Owners Corporation Network

5.2.5 Enforcing by-laws

Although there is a prescribed process for enforcing by-laws. Interestingly, there is no mandated process that requires the executive committee to address by-law infringements. However, there is an opportunity for an owners corporation to issue a notice to comply on the alleged offender or offenders. This would take the form of a resolution of the executive committee and typically only be invoked after other avenues, such as negotiation and warning letters, had failed to achieve a satisfactory outcome.

A building cleaner took it upon himself to physically restrict a resident from entering a lift with a small dog. There was a by-law which stated that pets were not to be kept without the approval of the executive committee. However, this was not the appropriate way to ensure the by-law was followed. By physically stopping lift entry the cleaner could have left himself and the owners corporation liable to be sued.

This is the only legal process an executive committee can take to enforce by-laws. Note: to implement this process the owners corporation (or the executive committee) must be satisfied that the owner or occupier has contravened that by-law. There must be reasonable evidence and appropriate documented discussion and not just hearsay.

You are not entitled to take matters into you own hands and make up penalties. You cannot create by-laws to impose penalties for non-compliance as this would override the Act’s enforcement process and be beyond power i.e. ultra vires (see 3.6.1).

Often non-compliance of by-laws is due to a simple misunderstanding or ignorance of the by-law being broken. So it is always best to send a polite letter (from either the executive committee or the strata manager that complies with the section of the relevant Act, stating the breach and requesting compliance with the relevant by-law. This is often enough to resolve the issue.

Relevant NSW Legislation: Strata Schemes Management Act (1996)

Section 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.

Section 203: Civil penalties for contravention of notice of owners corporation