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My OC passed a special resolution relating to the consolidation of the by laws but then failed to lodge the changes with Land Registry Service (LRS) within the 6 months as set out in s 141(4).
When the problem of late lodgement came to the attention of the LRS the date of the resolution was changed on the by laws change form (15CH form) to a different date.
There was no meeting and there was no new special resolution passed on the ‘new’ date that now appears on the 15CH form.
LRS, on the presumption of regularity, then registered the dealing.
So my OC has a dealing lodged out of time that authorises changes to the by laws based on a purported special resolution that does not exist.
How valid are those by laws?
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For the unitiniated, Section 141(4) says this:
A notification [of new by-laws] cannot be lodged in the Registrar-General’s office more than 6 months after the passing of the resolution to make the by-law.
So, on the face of it, those by-laws would appear to be invalid. But what does this actually mean?
In real terms, it means that anyone who is sent a Notice To Comply with one of these by-laws can ignore it or reply that the by-law was invalid so the breach can’t exist. Chances of that happening in world where a lot of apartment residents think by-laws are optional? Very low.
The smart thing for your strata scheme to do would be to re-table the by-laws at the next AGM and in the meantime pretend that they are valid on the basis that the kind of people who wilfully breach by-laws won’t know the difference.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Please, I too have a question or three about by-laws etc.
Our Strata Agent is saying they will only provide a copy of our (updated) by-laws to Lot Owners – which we need to pass onto our incoming Tenants – if an Owner pays a $37.25 search fee. Is this legitimate?
Having just looked through the NSW Strata Schemes Management Act 2016, here are some more questions that I’ve been unable to resolve. In the current NSW SSM Act:
Where is it listed that tenants must receive a copy of the Schemes by-laws within a certain period of commencing a lease?
Where is it listed that all lease agreements/occupations must be notified and listed on the strata roll and is there still a penalty for not notifying the OC of those who are occupying a Residential Lot?
Is there still a penalty applicable for those who fail to notify the OC of those occupying the Lot and does anyone have a record of the penalty ever being applied by the NCAT?
Would the Penalty be ‘times’ the number of occupations the Owner failed to notify – ie each time a different person took occupation of the Lot?
We have many owners who Airbnb their apartments. Selecting just one: she’s been doing it for four years now, despite Land and Environment Court Orders, and has 96 Airbnb reviews. So, in theory, could another owner take her to the NCAT – the NCAT has already issued orders that STRs are NOT a residential tenancy agreement – and have her pinged for 96 times the fine for each of her Airbnb clients?
(Supposedly, would could also subpoena her Airbnb records – that would give the (much higher) exact number of clients she’s had through the building and drag Airbnb out into the open? Airbnb has been notified of this and other listings which are deemed by Council as an “Illegal Use of Premises”. Airbnb hacks do not acknowledge the correspondence.
Our Strata Agent has colluded with the short-term rental mob that controls our building for some 20 years now; they very actively act against those who seek compliance with legislation – our DA/Building Certificate/LEC Orders/NCAT Orders etc. The NCAT rejected a 1,200-page (documents) request for a Compulsory Strata Manager…To date, all contact with the NCAT has been profoundly debilitating, costly and distressing.
Any ideas folks?
Where is it listed that tenants must receive a copy of the Schemes by-laws within a certain period of commencing a lease?
Section 186.
Where is it listed that all lease agreements/occupations must be notified and listed on the strata roll and is there still a penalty for not notifying the OC of those who are occupying a Residential Lot?
Section 258.
Is there still a penalty applicable for those who fail to notify the OC of those occupying the Lot and does anyone have a record of the penalty ever being applied by the NCAT?
Yes, 5 penalty units as per the legislation. I have no idea how often, or if, it is ever applied.
Would the Penalty be ‘times’ the number of occupations the Owner failed to notify – ie each time a different person took occupation of the Lot?
It would be up to NCAT, however I would guess there would only be one penalty applied unless they kept doing it after the judgement and you took them to NCAT a second time.
I can’t comment on the Airbnb issue.
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