Noisy Bird

Check your by-laws.  If they are anything like the standard by-laws, you will have   one that says owners can’t interfere with the peace and quiet of other lots and there will probably be one that either restricts pet ownership or establishes condition under which pets are allowed.

I’m betting both by-laws have been breached.  What you need to do now is write to your EC and ask the the offending owners be asked to keep the bird quiet or a Notice To Comply will be issued, which will lead to a fine

You can read ab bit more about the complaints procedure in my current editorial HERE

Clause 35 of the NSW Standard Residential Tenancy Agreement (SRTA)merely obliges the landlord to give the tenant a copy of the Strata By-Laws within 7 days of the lease being signed (and it usually doesn’t happen).

There is no obligation in Clause 35 for the tenant to obey the By-Laws.

In fact, there’s nowhere in the SRTA which requires the tenant to obey the strata By-Laws. A big failing!

The SSMA section 44(2) seems to oblige tenants to obey the By-Laws, but what tenant has ever read the SSMA?

Clause 43 of the SRTA is a “cross out whichever is inapplicable” clause which specifies whether the landlord will allow pets or not allow pets, and makes no mention that there might be an overriding By-Law concerning pets.

The Strata Manager will not know what the landlord allowed in clause 43 because a copy of the SRTA is not provided to the Strata Manager.

But I agree with your approach. If the landlord has specified no pets, then a call to the rental agent is a lot more efficaceous (because it’s a breach of the lease) than enforcing a strata By-Law via the EC and the CTTT.

@JimmyT said:

However, there is a grey area which I am currently investigating – does non-compliance with by-laws constitute a breach of the lease agreement?

I agree that it’s a grey area, but can add that when I represented our Owners Corporation (O/C) at the Consumer, Trader, and Tenancy Tribunal (CTTT) on an occasion when we had issued tenants with a Notice to Comply, the Adjudicator acknowledged that the tenants had breached the By-Law (which infers a requirement to comply), but dismissed the matter as the tenants claimed that they hadn’t been provided with a copy of those By-Laws by their Property Manager; if body-language was any indication, I believed them. 

So the O/C then lodged a Complaint against the Property Manager and their Licensee with the Office of Fair Trading under Cl 191 (a)+(c) of the Property, Stock and Business Agents Act, and that too was dismissed because the Investigator determined that the O/C did not have a documented business relationship with the Property Manager or with their Agency, and that it therefore had no grounds to lodge a complaint.

Not a good month, but more lessons learnt!! 

I’ve since included our Plan’s By-Laws and Special By-Laws as a download on our Plan’s website, and so far as I’m aware only one (1) of the six (6) Agencies whose Property Managers place permanent tenants in our Plan now provides that information; so the Executive Committee does, together with the “Welcome Letter” that I’ve mentioned in past posts.

Hi DTA

I wonder why you are assuming this bird owner is you – LadyJ did say this particular bird had only been acquired recently.

Also, it’s up to the tenant to seek any required permission for a pet, not the landlord – they can’t be held directly responsible for the behaviour of a tenant’s pet (unless there is a complaint and they don’t do anything about it.)

@JimmyT said:
Hi DTA

I wonder why you are assuming this bird owner is you – LadyJ did say this particular bird had only been acquired recently.

Also, it’s up to the tenant to seek any required permission for a pet, not the landlord – they can’t be held directly responsible for the behaviour of a tenant’s pet (unless there is a complaint and they don’t do anything about it.)

Hi Jimmy,

I don’t know how recent she thinks is ‘recent’, but I do know that a previous post of hers indicates a feature that matches the building I live in, and also about a day before this bird post went up a lady in our building asked me if we were owners or tenants, apropos of nothing, while I was entering the building (and also while trying to urgently navigate one of those button-pushing menus with a service provider on my phone – actually, my trying to listen for instructions at the time may potentially be the source of ‘unapproachable’).

In terms of strata – when the rental agent holds all the cards in terms of knowing who to contact at strata and how, and when we’re meant to contact them for repairs first (whether it’s common property or not), how are we supposed to know at what point they stop being a go-between and we have to do everything ourselves? Happy to do it ourselves, but contact details or any information… at all… would have been nice. Anyway, that’s in the past tense – will definitely keep your words in mind for the future and see how we can be sure whether we have permission or not.

If it’s not us, no harm no foul – at least I’ve learnt something new (yet more reason to not trust rental agents, sigh).

JimmyT says “Ignorance of the law is no defence”.

Whale’s experience shows that at the CTTT apparently it is.

A cynic (not me) might say that at the CTTT it’s almost a job requirement.

Anyway, the big Strata Review is underway.

But it needs a holistic approach.

Whatever Act governs the RG’s Office needs to be changed so that By-Laws for a Strata Plan are always registered as a complete replacement set. There seems to be some impetus in this direction.

Then the Acts which govern sale or lease of Strata property need to be amended to require attachment of the latest By-Laws to the contract. Giving people the By-Laws 7 days later (if it ever happens) is too late.

Then the Residential Tenancy Agreement needs to be changed so that compliance with the Strata By-Laws is a condition of the lease.

And just in case there’s no formal lease, such as a member of the owner’s family, we do what Whale does, stick a “Welcome” document under the door.

Also, in this electronic age, the LPI (RG’s Office) could make the latest registered By-Laws for any Strata Plan available on-line just by typing in the SP number. No breach pf privacy there.

This may be a little off topic, but what’s the difference between By-Laws and Special By-Laws? I’ve never understood.

Of course, none of this helps LadyJ with her current problem.

But if DTA is the “culprit”, he sounds quite approachable.

There is a requirement under the law (Section 46, below) for the landlord to provide tenants with an up-to-date copy of the by-laws under threat of a massive $100 fine.

How does one go about having this fine imposed when most of them don’t even comply with the law that says they have to inform the owners corporation when and to whom they have let their unit every time it is leased (See section 119, below).

I reckon it’s time a few buildings had a blitz on agents who aren’t following up with either of these.  Just keep an eye on open inspections and then give it 14 days. If the new tenants haven’t been advised to the EC and they haven’t been given a set of by-laws, it’s time to call Fair Trading and get them on the case.  By the way, I would chase the owners rather than the agents.  The agents will just charge the owners and blame the EC.  We want the owners to pay the fine, bill the agents then sack them.

46   How does a lessee get information about the by-laws?

(1)  If a lot or common property in a freehold strata scheme is leased, the lessor must provide the lessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.

 

Maximum penalty: 1 penalty unit.

 

(2)  If a lot or common property in a leasehold strata scheme is sublet, the sublessor must provide the sublessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.

 

Maximum penalty: 1 penalty unit.

 

(3)  The copy of the by-laws or strata management statement must be provided to the lessee or sublessee within 7 days after the lessee or sublessee becomes entitled to possession of the lot or common property.

(3A)  If a lot or common property in a freehold scheme is leased and the by-laws are amended, the lessor must provide the lessee with a further copy of the by-laws, within the time and in the manner required by this section.

 

Maximum penalty: 1 penalty unit.

 

(3B)  If a lot or common property in a leasehold strata scheme is sublet and the by-laws are amended, the sublessor must provide the sublessee with a further copy of the by-laws, within the time and in the manner required by this section.

 

Maximum penalty: 1 penalty unit.

 

(3C)  Any further copy of by-laws required to be provided under subsection (3A) or (3B) must be provided to the lessee or sublessee within 7 days after the amendment of the by-laws is recorded by the Registrar-General under section 48 (1) (b).

(4)  The copy of the by-laws or strata management statement (including any further copy of by-laws that have been amended) must be:

(a)  served personally on the lessee or sublessee, or

(b)  if the lease or sublease relates to a lot—served on the lessee or sublessee in any manner allowed by this Act for service of a document on the occupier of a lot, or

(c)  if the lease or sublease relates to a lot or common property that is fully enclosed by walls or other structures—left in a conspicuous position at the lot or on the common property.

(5)  Subsections (1), (2), (3A) and (3B) do not apply if the strata scheme concerned is part of a community scheme or the lessee or sublessee is the owner of a lot in the strata scheme concerned.

 

119  Notice to be given to owners corporation of leases or subleases

(1)  If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation within 14 days after the commencement of the lease.

Maximum penalty: 5 penalty units.

(2)  If a lot is subleased, the sublessor must give notice of the sublease, in accordance with this section, to the owners corporation within 14 days after the commencement of the sublease.

Maximum penalty: 5 penalty units.

(3)  If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation within 14 days after the execution of the assignment.

Maximum penalty: 5 penalty units.

(4)  The notice must specify:

(a)  the name of the lessee, sublessee or assignee, and

(b)  the date of commencement or assignment of the lease or sublease, as the case requires, and

(c)  the name of any agent acting for the owner in respect of the lease or sublease.

Ah, well in that case – it’s not us, we’ve got a completely different species. Good to know I’m just paranoid about not disturbing my neighbours…

Yeah, cockatiels are indeed very loud with their whistles. My sympathies. Usually, if it’s whistling all day while people are gone, it’s because it’s alone and wants to be sure its ‘flock’ can find its way back – this is why they normally recommend you get two together instead of just one. A second bird could potentially be the (counterintuitive) solution, if these people are not going to get rid of it or leave soon. Best of luck in solving the issue!