Security Bars: Common or Lot Property?

In the matter of Cestaro v The Owners – Strata Plan No. 457 NSW Civil and Administrative Tribunal of 12 February 2019 (unreported), it was held that security bars affixed to the external windows of a lot were common property.

The lot owner applicant alleged that security bars that they had installed in 2004 and that were removed by the Owners Corporation in 2015 during remedial works, were lot property and should be replaced by the Owners Corporation.

There was no common property rights by-law permitting the lot owner to install the bars, however, the lot owner had been given permission by their strata manager to change them in 2004. Although the Owners Corporation was subject to model by-law 5 regarding locking or safety devices (which permits lot owners to affix locking or safety devices to common property) this fact was not expressly mentioned in the reasoning of the Tribunal, rather, the reasoning primarily turned on the definition of lot property being the inner surface of the boundary wall and the fact that the security bars had been affixed to common property. The Tribunal further reasoned that the security bars were lot property installed at cost to the lot owner until they were affixed to the common property at which time they became common property.

It was also held that the decision of the Owners Corporation to approve a remedial works contract that expressly included the removal of the existing security bars but not their reinstallation, was a valid decision, and that the Owners Corporation decision to delegate decisions regarding the remedial works to the strata committee was authority for the strata committee’s decision to not allow reinstallation of existing or old security bars, but only to allow lot owners to install new security bars in a style and design of the strata committees choosing.

The reasoning in this decision did not consider whether security bars installed pursuant to a common property by-law would have changed this outcome, however, it is our opinion that it would have dramatically altered the outcome. If a lot owner wants permission to deal with security bars, the security bars should be authorised pursuant to a common property rights by-law that includes terms which provide for the costs and ownership of the bars and any conditions as to style, colour and of course repair, maintenance, and replacement.

Kerin Benson Lawyers advised the Owners Corporation in this matter.

Three Key Things to Research when Considering Buying a Strata Unit: Don’t Shy Away From It

Across Australia the growth of strata title buildings is continuing. Over the Christmas break NSW residents would have looked on in horror at the structural defect concerns raised at the Opal Tower building in Olympic Park causing an evacuation of the complex. The most important thing you can do to prevent a similar situation is to do your due diligence in three key areas. Read more here. 

By-Law Consolidations: The Obligation and Getting Them Right

The commencement of the Strata Schemes Management Act 2015 (the new Act) on 30 November 2016 means that schemes are now required to keep a consolidated list of the by-laws in force for their scheme and register the consolidated list with any new change of by-law. As all strata schemes in NSW are governed by by-laws which provide for the management, administration, control use and enjoyment of the lots of common property, it is important that a consolidated set of by-laws not only incorporates all the changes in force for the scheme, but that the correct by-laws are identified in the first instance. This article will outline the importance of identifying which by-laws apply to your scheme, as well as examine what the obligation to keep and register consolidated by-laws means for owners and owners corporations.

Since the Conveyancing (Strata Titles) Act 1961, strata legislation has provided sets of model by-laws to apply to, or be adopted by, strata schemes. Changes to legislation over time has meant that some schemes, particularly those registered before the commencement of the Strata Schemes Management Act 1996 (ie before 1 July 1997), have seen statutory changes to their model by-laws.

The new Act has again changed the model by-laws (see our article ‘Which By-Laws Apply to Your Scheme’). What all this means is that for many schemes, changes in legislation, bringing in new model by-laws, and changes to by-laws have left those schemes with multiple by-laws in similar terms, odd numbers, and duplication were care has not been taken to consult by-laws already registered on title prior to making changes.

Prior to the commencement of the new Act, changes to the by-laws were made (once passed by the owners corporation as a special resolution) by submitting the appropriate form to Land and Property Information (LPI) who then recorded each change of by-law on the title under a unique dealing number. This provided an accurate, albeit it, lengthy record of the changes to by-laws. The new Act requires the secretary of the owners corporation to keep a consolidated set of by-laws. The new approved LPI form to register a change of by-law requires that not only the change of by-law to be set out in full, but that a consolidated set of the by-laws for that scheme be set out in full incorporating the new change. The LPI has also made clear that old change of by-law notifications will be removed from the common property title and will be replaced by the dealing which notifies the most recent change of by-law along with the consolidated set of by-laws.

The LPI has indicated that the purpose of the consolidations is to make it easier to access the by-laws in force for a scheme. Indeed, a lot owner, future lot owners, and owners corporations will no doubt welcome the change in that it becomes much easier to determine which by-laws are in force rather than trawling through numerous dealings and to find out whether a by-law has been repealed, or replaced. However, owners corporations in particular should be aware that the by-laws in force for a scheme are those notified on the title, and care should be taken to always ensure that the most recent set of consolidated by-laws are annexed to change of by-law forms since the old unique change of by-law notifications will be deleted. This is most important during the first by-law consolidation since it will be the last time the unique dealings will be easily searchable.

A by-law consolidation by Kerin Benson Lawyers takes into account the year the scheme was registered, an examination of the changes made to the by-laws, and consideration as to which by-laws apply to the scheme. It should be also noted that schemes are required to undertake a review of their by-laws by 30 November 2017. A review (aka audit) is an additional step which examines all the by-laws and considers their validity and enforceability. Please contact us for more information on consolidations and/or reviews.

If you require any assistance with a by-law consolidation or audit/review, or require a quote, please contact Kerin Benson Lawyers on (02) 8706 7060 or email enquiries@kerinbensonlawyers.com.au 

FACT SHEET 7: Strata Reforms: What By-laws Apply to My Strata Scheme?

Many lot owners, particular those in older strata schemes, do not know what by-laws apply to their scheme. While the Secretary of the Owners Corporation is required to keep a record of all the by-laws in force in the scheme this record may not always be accurate.

Why? There was a change to the law on 1 July 1997 affecting strata schemes registered before this date and, as of 30 November 2016 when the relevant sections of the Strata Schemes Management Act 2015 takes effect there will be further changes. Also over time there is often ad hoc additions, amendments and repeals of by-laws by the Owners Corporation. If rigorous records are not kept, confusion ensues.

This is particularly so where there are several by-laws in respect of the same subject area which have been amended over time. If not properly drafted these by-laws can cause uncertainty. As of 30 November 2016 the following applies:

Schemes registered before 1 July 1997 Schemes registered between 1 July 1997 to 29 November 2016 Schemes registered on or after 30 November 2016
·      The by-laws set out in Schedule 2 of the Strata Schemes Management Regulation 2016; and

·      any registered changes to the by-laws made under previous strata title legislation;

·      any registered changes to the by-laws made under the Strata Schemes Management Act 2015 post 30 November 2016

·   The by-laws adopted by or lodged with the strata plan; and

·   any registered changes to by-laws made under the Strata Schemes Management Act 1996; and

·   any registered changes to the by-laws made under the Strata Schemes Management Act 2015 post 30 November 2016

 

Note: The by-laws adopted by or lodged with the strata plan may be developer’s by-laws, the model by-laws under the 1996 Act, or the model by-laws under the 2005 or 2010 Strata Scheme Management Regulations

·         The by-laws adopted by or lodged with the strata plan; and

·         any registered changes to by-laws after the strata scheme is registered.

 

 

Note that any amendments, repeals or additions to the original by-laws must be registered to be valid but that registration does not make an invalid by-law valid.

NOTE: This factsheet replaces our previous article on what by-laws apply to your scheme dated 8 August 2014

 Any further questions about strata or community titles law?

Call Kerin Benson Lawyers on 02 8706 7060 or email allison@kerinbensonlawyers.com.au or enquiries@kerinbensonlawyers.com.au

 

NSW FACT SHEET 1: Want to do work to your lot? You may need a by-law

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.

Why?

 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 allison@kerinbensonlawyers.com.au or sian@kerinbensonlawyers.com.au for an estimate to prepare and register this additional by-law for your strata scheme.

To clamp, or not to clamp, that is the question: Who does a wheel clamping by-law apply to?

Importantly, by-laws do not bind visitors to the scheme. This means that any by-law regarding visitor parking spaces and parking on common property can only be enforced against a lot owner, occupier, mortgagee or covenant chargee or any lessee or sublessee of any lot or common property.

At most, the NSW model by-laws require a lot owner or occupier to “take all reasonable steps” to ensure that their visitors comply with the terms of the by-laws. Reasonable steps are likely to include lot owners and occupiers informing visitors of the relevant car parking by-laws, requesting that they visitors abide by the by-laws and, if they are advised of a breach, requesting that visitor move their vehicle.

Can we wheel clamp a vehicle on the common property?

This is a very common question, particularly for those who have visitors parking that is visible from the street and their property is near a hospital, shopping centre or commercial strip. The answer is maybe.

Wheel clamping is governed by sections 651B and 651C of the Local Government Act 1993 (NSW). These sections provide that a person (including an owners corporation) cannot immobilise or unlawfully detain a vehicle that they do not own without first obtaining the permission of the person who owns the vehicle. The penalty for doing so can be up to $2,200.

A by-law can provide for wheel clamping however consent to immobilise or detain a vehicle under sections 651B and 651C of the Local Government Act is required. There are very few cases in this area and the jury is still out as to whether section 44 of the Strata Schemes Management Act 1996 (NSW) provides the consent of lot owners and occupiers. It means that the by-laws have the effect of an agreement under seal. It may not however be sufficient to provide the required “consent”. In one QLD case a lot owner argued that they did not give consent (under the QLD equivalent to section 44) and that the consent was forced on them. The QLD Supreme Court agreed and treated the agreements created by way of by-laws between the body corporate and its proprietors as fictional agreements. If this approach was taken in NSW a by-law by itself would not provide the required consent.

To overcome this potential argument we strongly recommend that the consent of all owners and occupiers is obtained to any by-law providing for wheel clamping and our precedent parking by-law provides for this consent together with setting out a detailed procedure which is to be followed prior to any wheel clamping device being used that also includes a warning to the owner of the vehicle.

If your owners corporation is considering amending its by-laws to include the ability to wheel clamp or immobilise a vehicle we recommend they seek detailed advice on such a by-law please contact us at either our Sydney or Newcastle offices.

Allison Benson

Legal Practitioner Director

Getting it right the first time round: Avoiding LPI requisitions for by-laws

Whether it’s to authorise a renovation, regulate pet ownership, or to give the executive committee permission to approve the installation of solar panels, any change, repeal, or addition of a by-law requires the filing of documentation with Land and Property Information (LPI). With more than 72,000 strata schemes across NSW, and a significant proportion of the NSW population who may want a by-law registered or changed, the LPI is governed by specific requirements that must be met by anyone wishing to change, add or repeal a by-law. A list of some (but not all) of these requirements is set out below:

  • Has the proper form been used and is the right person/are the right people executing it?
  • Do the details on the form relating to the new by-law match LPI’s existing file? For instance, if the new by-law is stated as being “Special By-law 3”, the last by-law in LPI’s records should be Special By-law 2, not Special By-law 1, or 3, or 4.
  • Have all attachments been properly verified? LPI has an exacting standard in respect of verification and execution of attachments.
  • Does the name of the owner of the affected lot, as set out in the by-law documentation, match the name on title for that lot, as recorded on the certificate of title (title deed)? For example, has Miss Elizabeth Smith now become Mrs Elizabeth Connor? Any discrepancies in name should be explained by way of statutory declaration, filed at the same time as the change in by-law documentation.

If LPI is not satisfied that the documentation provided is accurate or compliant with the relevant standards, it will issue a requisition notice. This notice sets out the areas that require attention and provides a timeframe within which documents should be re-lodged.

Depending on the change(s) required, the availability of the strata manager or, in the case of a self-managed strata scheme, the availability of all owners required to authorise amendments and affix the common seal of the owners corporation, it may take some time for changes to be made and the documents re-lodged. If documents are re-lodged after the expiry of LPI’s timeframe, a further fee of $107 will apply. The additional time taken also holds up registration of the by-law, which in turn prevents the owner or owners from being able to take the action the by-law is to authorise. Time may also be an issue as by-laws need to be registered within two years of being resolved upon.

Whilst at first glance filing LPI documentation and ensuring compliance with LPI processes may seem like child’s play, errors are easy to make and can be costly.

For more information about by-laws, please contact Allison Benson of our office.

Update March 2017 

Since the above was posted in 2015, there have been a number of changes regarding registering by-laws. The Strata Schemes Management Act 2015, which commenced on 30 November 2016, now requires that schemes wishing to register a change of by-law with the LPI to do so within six months after the date at which it was passed. The LPI have also updated their registration process, in particular, the approved form required to be used. The first updated occurred on 1 December 2016 required schemes to annex the change of by-law but also a consolidated set of by-laws incorporating the new change of by-law. The second change occurred in February 2017, the substantive change being that all changes to by-laws lodged using the approved form will have been passed pursuant to section 141 of the new Act. The LPI also introduced a $50 requisition fee for documents relating to dealings beginning on 1 January 2017.

Allison Benson
Legal Practitioner Director
Ph: (02) 4032 7990
E: allison@kerinbensonlawyers.com.au

Renovations in Strata & Community Title Lots: New Planning “One-Stop-Shop” Website to Fast Track Development Approvals

This is a caution that the new website https://hub.planning.nsw.gov.au/ for home owners wanting to renovate their properties launched by the Dept. Planning & Environment to fast track development approvals is not a one-stop-shop. Home owners in strata & community schemes should remember that they may need the approval of their owners corporation, building management committee or relevant association.

Why is this important to remember?

Strata Schemes

For owners of a strata property, if the work you intend to do affects the common property then, in addition to considering whether you need development approval for the work, you must have the approval of your owners corporation to conduct the work. As the owners corporation owns the common property you cannot alter the common property without its permission.

If your planned work is major renovation work, then any approval will by way of a motion passed at a general meeting for a by-law under either section 65A or 52 of the Strata Schemes Management Act 1996 (NSW) authorising the works. If a development consent is required then the owners corporation as the owner of the common property affected by the renovations will also have to consent to the development application.

If development consent is not required as your planned work is minor, such as installing new cupboards or new shelving along a common property wall, then model by-law 5 applies. This means you must request written approval from your executive committee prior to doing this work. If your scheme is not governed by the model by-laws check for an equivalent by-law.

You should also consider if there are any by-laws setting standards. Model by-law 17 provides that you must not maintain anything in a lot that is not in keeping with the appearance of the building. Installing a trellis may breach this by-law. If your strata scheme is only part of a building, you must also comply with any architectural guidelines in the strata management statement.

Community Associations

If you live in a community association you should keep in mind the architectural guidelines for your association. These guidelines will often provide for the approved shades of paint or material that must be used. For instance, installing an ochre coloured roof or a tin roof instead of a charcoal slate roof may breach your association’s architectural guidelines. You should also consider whether the work you are doing will affect any community property such as piping or cabling for services or even footpaths. These sort of mistakes are costly to remedy, can cause bad feelings in the community and are easy enough to avoid with a bit of prior research.

For further information, or for a quote on preparing any necessary by-law, please contact Kerin Benson Lawyers on 02 8706 7060.

Kerin Benson Lawyers

Author: Allison Benson

Office: Sydney & Newcastle

Email: allison@kerinbensonlawyers.com.au

Date: 13 March 2015