Having a special by-law drafted by a solicitor, seeking the Owners Corporation’s approval and registering the by-law approving the works, are the main steps that an owner wishing to renovate their strata unit needs to take before commencing major works.
Under section 111 of the Strata Schemes Management Act 2015 (the Act), major renovations have to be approved by special resolution of the Owners Corporation at a general meeting. It is important that the motion is correctly drafted in order to reflect that the by-law was adopted by special resolution, as required by the Act.
The process to pass and register a by-law has many steps which must be followed as, until the by-law is registered it has no effect. Sometimes, the start of the works can be delayed by a failure to properly execute the documents required to register the new by-law.
Below is a short guide to avoid the most common mistakes when dealing with the Land Registry Services (the body responsible for record keeping in relation to property in NSW) and ensure that the process runs as smoothly as possible.
- The time frames
Under section 141 of the Act, a by-law needs to be submitted for registration with the Land Registry Services within 6 months of the motion being passed at a general meeting. Failure to do so will result in the motion having to be re-passed, which would mean additional costs and delays for the owner. The owner should be aware that the amended Section 160 of the Evidence Act 1995 (NSW), requires at least 14 days’ notice (7 clear days’ notice + 7 working days for postage) to be given to all owners before a general meeting can be held. It is therefore critical that the owner/strata manager allow sufficient time for the rest of the owners to consider the works, meet and discuss the potential impact of the works on the affected portion of common property.
- The execution of documents
When executing the documents for registration, there are a few simple rules that the Strata Managers/Strata Committees should keep in mind to avoid requisitions being raised by the Land Registry Services and unnecessary delays:
- Ensure that the documents are printed one sided and in black and white. The NSW Land Registry will not accept double sided forms or coloured forms.
- Ensure that the change of by-law form (form 15CH) is completed in all its parts by affixing the seal, dating and having an authorised member of staff sign and print their name and authority. Section 273 of the Act contains the list of persons authorised to execute the form.
- Affix the seal and sign the first and the last page of the annexures to the change of by-law form. A dark blue or black pen should be used. The seal should be clearly visible and should not be smudged or be cut off by the edges of the page.
- Depending on the building, the Owners Corporation may also need to file an approved form 10 indicating that the initial period has ended. This is a new requirement of the NSW Land Registry and the change of by-law will not be registered without it.
- After the registration is complete
Once the by-law has been registered, the Land Registry Services will release a new certificate of title, which will include the terms of the new by-law. It is very important that the certificate is kept in a safe place by the strata manager/strata committee.
It is only after the registration has been finalised (and subject to any conditions imposed by the special by-law), that the owner may commence the works. In fact, until registered, the changes to the by-laws have no force or effect.
By Michela Alesse and Allison Benson