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If it is not compulsory for an EC to enforce by laws, then where does this leave owners? If an EC picks and chooses which by laws they enforce (and for whom), what can they do if a once by law abiding owner just decides to break a by law? If the EC has a record of doing a bit here and there, can they then come down on an owner who decides to join the rebel pack?
We have an owner who has made a complaint to the EC about another owner’s behaviour in breaching by laws. The owner who lodged the complaint is still waiting for acknowledgement/reply/action – anything from the EC. If the EC doesn’t do anything about this breach, then can this owner break a by law themselves with impunity if they have proof that action isn’t taken on other matters? While this owner waits, and waits, the last time another owner made a complaint about a by law, the notices/letters came out to all!
Why should some jump through hoops, dot the i’s, cross the t’s if others are left to their own devices? And why should the complaints of one be heard, and of others seemingly ignored?
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There is a little known and little understood section, section 44, of the Strata Schemes Management Act, which provides to the effect that the bylaws are also a contract between owners and tenants. So, if anyone breaches a bylaw, then technically, they are also breaching a contract which any other owner or tenant could sue for damages on if they can prove they suffered a loss as a result of the breach.
However, I am unaware of any cases on section 44.
@struggler said:If it is not compulsory for an EC to enforce by laws, then where does this leave owners? If an EC picks and chooses which by laws they enforce (and for whom), what can they do if a once by law abiding owner just decides to break a by law? If the EC has a record of doing a bit here and there, can they then come down on an owner who decides to join the rebel pack?
The legal key to this puzzle is that (in NSW) an owner or tenant can seek redress from another owner or tenant directly via Fair Trading and the CTTT. The fact that the EC has chosen not to get involved, of course, leaves the complaining owner out on a limb (as in the case you describe) but not without recourse to a legal remedy.
In the case of the woman and the mad parker, I wouldn’t wait any longer and get the mediation form into Fair Trading ASAP.
The long term solution is to wait until the AGM and ask EC members what they’re doing standing for election if they aren’t prepared to uphold the standards of the community via the by-laws.
And if I was accused of breaking a by-law (heaven forbid!) I would just point to all the times the by-laws hadn’t been enforced and claim victimisation (on the basis of race, height and weight).
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.
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