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Posted 15 March 2022
Category: Strata, By-Laws, Building Defects
A sporting game can become an ugly affair when the referee blows the whistle for every infringement, seems to be blowing it in favour of one team or fails to blow it all. It works the same way with enforcement of strata by-laws. A scheme can quickly become dysfunctional when the strata committee is over or under active or seems to be favouring one group of owners over another.
So what can an owner do if unhappy with the way the strata committee has been administering the by-laws of the scheme? Key considerations:
The first would provide a more comprehensive solution, but won’t always be realistic.
However, in a recent decision of Wheeldon Amigh Pty Ltd ATF the Whelldon Amight Trust v Life Fitness Australia P/L and The Owners – SP No 85582  the Tribunal did get involved in such a dispute. In this matter, the owners corporation was not enforcing its by-laws. The Tribunal ordered that the first respondent (a tenant of a lot in the scheme) comply with the by-laws of the scheme and comply with its obligations under the Strata Schemes Management Act not to use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot pursuant to section 153(1)(c).
In addition, the Tribunal ordered that the owners corporation was to take all reasonable steps to enforce the by-laws of the scheme, including by issuing notices to owners and occupiers under section 146 of the Strata Schemes Management Act 2015 for infringements of by-laws, and by bringing an application under section 147 of the Strata Schemes Management Act 2015 seeking the imposition of a civil penalty for continued breaches of the schemes by-laws.
It is worthwhile to note that the Applicants in this matter were also seeking an order for the appointment of a compulsory strata managing agent of the scheme pursuant to section 237 of the Strata Schemes Management Act 2015 which the Tribunal was definitively reluctant to grant, as set out in the decision. The specificity of the orders in relation to the owners corporations obligations to enforce the by-laws of the scheme may be as a result of the Tribunal’s unwillingness to appoint a compulsory strata manager and setting stringent orders in place for the owners corporation to ensure that it manages itself properly to avoid any further alleged dysfunction.
We have considerable experience with these issues and could help you manage difficulties in this area.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.