In SCA NSW’s most recent webinar hosted by SCA NSW, Leanne Habib (Premium Strata) joins Tony Irvine (SCA NSW President) and Matt Jenkins (SCA NSW Director, Bannermans Lawyers) to discuss the process for enforcing by-law breaches.
When by-laws are breached, it’s crucial for Owners Corporations to enforce by-laws diligently and fairly. Here’s a step-by-step approach to enforce by-laws:
A Quick Recap
By-laws are rules and regulations that apply to everyone in a strata scheme: owners, tenants and even visitors. They cover various aspects such as noise levels, pet ownership, use of common areas, parking and more. By-laws are enforceable under strata law and are essential for maintaining order and fair use in strata schemes.
Step-by-Step Guide for Enforcing By-Laws
Step 1: First By-Law Breach Letter
The process begins with issuing a first By-Law Breach Letter upon identifying a breach. This letter, typically drafted by the Owners Corporation Secretary or Building Manager, notifies the offender of the specific by-law violation and urges them to rectify the issue.
While this step is NOT compulsory, the letter serves as an initial warning and courtesy, allowing the alleged offender to defend their position and comply voluntarily without escalating the issue further.
Step 2: Second By-Law Breach Letter (Optional)
If the breach persists despite sending the first letter, a second By-Law Breach Letter may follow within 7-14 days.
Step 3: Notice to Comply
If the issue continues, the Owners Corporation can proceed to issue a Notice to Comply. This formal notice specifies the breached by-law, demands compliance within a specified timeframe (usually 14 days) and warns of potential penalties if ignored.
Key requirements for issuing a Notice to Comply include:
- Prescribed Form – It must be completed using the form provided by NSW Fair Trading.
- Affidavit of Service – After issuing the notice, an Affidavit of Service must be completed and sworn before a solicitor. This affidavit confirms that the notice was properly delivered to all relevant parties.
- Owners Corporations Authority – Only the Owners Corporation can issue the Notice to Comply unless the Strata Manager has been delegated this function, in which case, no resolution of either the Owners Corporation or Strata Committee is required.
Step 4: Mediation (If Needed)
Mediation can be pursued as an alternative dispute resolution mechanism before escalating the matter to legal proceedings.
Step 5: Applying to NCAT for Orders
If mediation fails or isn’t pursued, the Owners Corporation can apply to the NSW Civil and Administrative Tribunal (NCAT) for Penalty and Compliance Orders. This application must be made within 12 months from the date of issuing the Notice to Comply. NCAT has the authority to impose fines for each breach since the notice was issued, up to 10 penalty units per breach (equivalent to $110 per unit).
Proceeds of Penalties and Further Actions
Penalties collected from fines are returned to the Owners Corporation unless NCAT directs otherwise. Continued non-compliance or breach of NCAT orders may lead to escalated penalties of up to 50 penalty units ($5,500).
Tips for Success
- Keep Records – Write down when and where the breach happened and take photos and videos where possible and permitted by law.
- Witness List – Keep a list of witnesses and complainants in case statutory declarations/affidavits.
- All the above adds weight to prove the Owners Corporation’s case.
