Want to do work to improve your lot? If you do, you may need to get a by-law. In most cases, your strata manager or owners corporation will be able to tell you whether or not you need to do so but the general rule is if you are altering the common property in any way you will need to get a by-law passed before doing the work.
The simple explanation is that you do not own the common property, the owners corporation (of which you are a part) does. In the same way that you can’t just go and make changes to someone else’s house without their consent, you generally can’t alter the common property without the consent of the owners corporation. In passing a by-law providing you with the special privilege to do the work, the owners corporation is providing that consent.
The more detailed explanation is that by-law 5 of the model by-laws in Schedule 1 of the Strata Schemes Management Act 1996 prevents an owner or occupier from “damaging or defacing” any structure that forms part of the common property prior to the written consent of the owner’s corporation being obtained.
If the works are of “minor” nature an ordinary resolution motion can be passed at a general meeting of the owners corporation. An ordinary resolution requires a simple majority vote to pass. Minor works includes affixing nails or screws to hang pictures or cupboards.
If works involve alterations or additions to common property you must seek approval under section 52 of the Act for the creation of a new by-law.
Additions include the installation of enclosures and awnings, air-conditioners, flooring, fences and any other items that are affixed or attached to common property. Removal of items such as load bearing walls within a lot also affect the structure of the building and require the creation of a new by-law for the lot.
What is the process of obtaining a by-law?
First, you need to be certain what work you want to conduct. This is because the proposed by-law will need to describe the proposed works in either words or by annexing plans or by a mixture of the two. This protects both you and the owners corporation as, once passed, the by-law will give clear authority to conduct the specified works.
Second, you should speak to a strata lawyer about your proposed works and provide them with a copy of any plans of the works, the by-laws for your scheme and a copy of the strata plan.
The strata lawyer will prepare a motion for your proposed works and send it to your strata manager for inclusion on the agenda of the next general meeting. If you want to do the work as soon as possible you should ask your executive committee meeting to call an extraordinary general meeting to allow your proposed by-law to be voted on. If they refuse, you will need to requisition a general meeting.
At the general meeting the owners corporation must specially resolve to pass your motion. This means not more than 25% of the unit entitlements (the voting rights that attach to a lot) can vote against your motion. If they do, your proposed by-law is refused.
What will happen if I do not obtain a by-law before doing the work?
If an alteration or addition is made to your lot that effects or changes the character of the common property, and you have not received the owners corporation’s consent for that alteration or addition, you may be in breach of the by-laws. The owners corporation may take action against you to have the alteration or addition removed and the common property restored back to its original condition.
Once I get the by-law drafted can I start works?
No. The by-law must be passed by special resolution at the general meeting of the owners corporation prior to any works being conducted. The by-law should also be registered prior to commencing works, as the by-law is not effective until it is registered on the certificate of title of the common property of the scheme.
What if the owners corporation refuses to pass my proposed by-law?
If the owners corporation refuses to grant approval to carry out works, you should attempt mediation with the owners corporation. If that process is unsuccessful you can than file an application with the NSW Civil & Administrative Tribunal for a Strata Schemes Adjudicator seeking an order to approve the works and the proposed by-law.
What information will we need to prepare the by-law?
In order to assist us in preparing an improvements by-law for your lot we will need a copy of your strata plan, the current by-laws, specifications of works being done, any drawings or diagrams and the full name of the lot owner for the by-law consent form.
How do I get a by-law for the purpose of making improvements to my lot?
Call Kerin Benson Lawyers on 02 8706 7060 or email firstname.lastname@example.org or email@example.com for an estimate to prepare and register this additional by-law for your strata scheme.