What do you do about an owner who ignores all your by-laws?

My nephew has apparently been causing much distress to his neighbours with loud music, pot and cigarette smoking etc. He lives in an apartment his mother bequeathed to him. There have been so so many complaints. His (estranged) sister is a property manager and coincidentally manages a few places in his building. She has assured strata that he will be moving out (seems he wants a bigger place) but no one knows when. Meanwhile, all they can do is complain and strata sends notices to him. Must be awful for them.

We has a case out here where an owner was not allowed to return to their lot for a period of 2 years by a Court.
He lived in the National Park for a while before selling, moving to the back of nowhere, and suicided.
But that was a PVO case and a court order likely to have been overturned had the defendant appealed.
Ziggy; there is a saying in strata and that is “you get what you deserve”.
This has happened because the OC has allowed it to unfold and happen hence the saying.
It represents poor management.
It is common to a lot of SPs. The OC send warning letters, they grumble, they do everything but pursue the resolution mechanisms in the Act and when it all gets out of hand then they consider the resolution options.

Your OC needs to stop being soft and get after this reprobate.
Who is running the place and why have they let it get to this?
You might need to address your management structure because it has failed.

Ziggy wrote:

It says on the NTC form/NSW government website that the next action is to go to Fair Trading.

No, on the official (and only legal) form it says you take it to NCAT.

IMPORTANT INFORMATION ABOUT THIS NOTICE
3. For a Penalty: an application to the NSW Civil and Administrative Tribunal must be made within 12 months of the Notice being served (given).

Now check out Page 11 (section 147) of this NCAT document.  Unlike most of the other orders, seeking a penalty for a by-law breach does not require evidence of mediation.

And in fact, the Fair Trading website offers you the choice of seeking mediation or taking a by-law breach directly to NCAT.

This is what it says:

If an owner or resident continues to breach a by-law after the notice to comply is given, the owners corporation can:

• • ask for an order from the Tribunal telling the person to pay a penalty.
  • apply for mediation with the resident who is breaching the by-law. If that does not resolve the issue, the owners corporation can then apply to the Tribunal for a compliance order.

Obviously in your situation you would go directly to NCAT, making sure you had a copy of the official minutes of the strata committee meeting at which it was decided to issue an NTC.

If you look at the detail of the law, it says that either the committee can instigate a request for penalties, provided that decision is taken by majority vote at a properly constitute committee meeting, or the strata manager can do so provided they think a bylaw has been breached.

It may be that your strata manager wanted you to pass a motion at a committee meeting before they were prepared to act on the complaint, having not witness the breaches themselves (although that might be considered nit-picking).

Have a look at this information from Kerin Benson lawyers, which lays out the detail of how to issue a Notice To Comply.

And have a look at this information from our sponsors Bannerman Lawyers which explains the timeline for the two options – going directly to NCAT or attempting mediation.

Ziggy wrote:

The Strata Committee is holding a properly constituted meeting this week re the issuing of NTCs AND they have also got Bannermans, the lawyers, involved.

Another example of why it is important to be firm and resolute from the first signs of trouble.  An advisory note or phone call after the first breach is fine. After that, go in hard and save yourself weeks and months of grief faffing around with warnings.  A Notice to Comply IS a warning, with a potential $1100 sting in its tail.

Any owner in the building can pursue complaints about by-law breaches (through the mediation and tribunal system).

NCAT was supposedly set up to be lawyer-free so the default is “no lawyers” although that is changing. If the miscreant hires a lawyer to defend their case, then your strata committee can do the same and claim costs on the basis that the defendant had a hopeless case (if indeed, the breaches are clear and obvious).

Just follow procedure. It’s all written down in the various websites.  As a wise person once said, anyone who sacrifices what’s right and just in order to save money, deserves neither.

Ziggy wrote:

“Despite legal letters and threats of Notices to Comply …”

And there’s your problem – a threat of a warning (which is what an NTC is) is just whistling in the wind.