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

 

What Members Say

"The whole strata community owes a huge debt of gratitude to you and the OCN executive. Much appreciated."

Robert, Darlinghurst

"I am very pleased with my membership of OCN, the discussions through sharing emails is very valuable in increasing my knowledge of strata living, the laws and EC responsibilities. I think I am better armed to tread the minefield of the managing agent responsibilities and the necessary action of the EC to monitor the contradictory interests of the agent."

Jim, Wollstonecraft

"I so appreciate being part of the OCN email forum. It provides a great opportunity for sharing ideas and learning"

Ingrid, Neutral Bay

"I must say that I have enjoyed and found consolation in the discussions that have been part of the email chain (forum). I did attend one general meeting and found that it was informative and the people "running the show" were knowledgeable and dedicated to the tasks that had taken on. In short, well done. You and the committee have and continue to support the Strata Community in a very professional manner."

Greg, Parramatta

"Nothing is easy in Strata World and we have been in building defects “mode” for some years – hopefully almost at an end but that process has been most demanding and difficult but again – greatly helped by the experience and wise counsel of other members of OCN."

Pat, St Leonards

"Keep up the good work, as many (if not most) strata schemes need your help, advice and representation at all levels of government."

Jann and John, St Ives

"I belong to OCN because of its professionalism.  I have found the meetings I have been to extremely well presented, to the point, and of course very topical and informative. Speakers on the whole certainly know their topic.  My role of Secretary last year was certainly assisted with the coverage regarding TPG & other subjects. Member newsletters are also of benefit as the topics are specific to strata matters."

Graham, East Balmain

I have enjoyed attending the quarterly OCN meetings and the exchange of emails between other Executive Committee Members and think OCN is playing an increasingly important role as a voice for strata dwellers and representing us at Government level. I wish the organisation continuing success in the future."

Pauline, Kings Cross

"The [forum] response to my question was amazing and really useful.  The OCN community is wonderful so thanks."

Jenny, Killara

"I would like to thank you all for the important effort that you are all putting in to look after apartment owners and tenants. It is so valuable and you are heroes. I would not have been able to deal with my duties as a strata chairman without your advice and assistance." 

Angela, Mascot

"The OCN is invaluable – many thanks."

Bill, Surry Hills

"OCN is proving invaluable"

Sue, Neutral Bay

"Thanks to all at OCN for your continuing efforts to keep us up to date with current strata information and advice...it has been very helpful to us"

Kate, Coogee

"When my wife & I first encountered a problematic Executive Committee I heard that OCN was a great help (from a Strata manager whom I knew) so we both joined and have gratefully used the on-line information sources. We continued to happily rely on OCN’s assistance when we progressed to Committee status & later as Chair & Secretary of our Committee. I still use OCN in my current role as Treasurer."

Peter, Chiswick

"Thanks to OCN for being such a rich resource of trustworthy information about strata matters."

Peter, Chiswick

"I wanted to extend my personal thanks for the very informative & interesting event today. The OCN team did an outstanding job in the organisation of this event & I enjoyed it thoroughly. The quality of speakers, the flow of conversation & interaction from the attendees - first class …& of course, the amazing Jimmy T - always a delight."

Sue, Epping

"OCN does a great job in providing a really valuable service to Strata owners."

Lois, Wollongong

"I am sure my appreciation of your good works is echoed by many in the Stratasphere. Keep up the good work."

John, Elizabeth Bay

"Once again, being able to discuss such things through this forum, helps clear the mind, puts things into perspective and helps one to understand their rights and to form a strategy if needs be. As a simple EC member trying to do what is in the best interests of lot owners, I truly value OCN and am grateful."

Pamela, Point Lookout

"The OCN is probably one of the best, most informed and most informative groups I have been involved with."

Alan, Maryville