Common problems with common property rights by-laws
Time and time again, we see some poorly drafted or “simple” by-laws. Sorry, we have to vent! Here is an example (below) – and no, it is not drafted by us:
- Special Privilege for Commercial Lot 1
- The owner of Commercial Lot 1 has the special privilege to carry out works on the lot without first obtaining the consent of the owners corporation to the alteration of the common property in connection with those works.
- The owner must give the corporation at least 7 days written notice of the intention to carry out works under this by law. The notice should give sufficient details of the works to be carried out to allow the owners to determine if the intended works are in compliance with this by law.
- Any works carried out under this by-law involving disruption to the access to the car space Lots to be carried out between 8:30 am-5:30 pm Monday-Friday only.
- Any works carried out under this by-law must not interfere with the structural integrity of the Building.
- The owner must repair any damage to the common property caused by the carrying out of the works under this by-law.
- The owner of Commercial Lot 1 is responsible for the maintenance and repair of any common property altered as a result of work carried out under this by-law.
We are all for quick/smart and short/sweet by-laws. But this by-law essentially became the central point of a recent NCAT dispute.
In short, the NCAT’s Appeal Panel held that the by-law was invalid back in September 2020, albeit it did comment that the matter was deceptively simple (which probably explains why it overruled the Tribunal’s original decision in holding that it was valid). The simplicity is alluring. However, a by-law needs to be sufficiently detailed or otherwise, it will be open to attack and/or fail to meet the prescriptive requirements of the Strata Management Scheme Act 2015 (NSW). In this case, it failed on both count. The outcome is that the commercial lot owner is required to remove its entire works so done pursuant to the by-law (which are quite substantial) and reinstate the common property to the state and condition prior to those works. The second and third respondent are also required to pay costs as agreed or assessed, even though the by-law was a developer by-law registered together with the strata plan back in year 2000.
So, the lesson is, DO NOT blindly follow by-laws! They can be wrong (completely) as they were in this case. And if you want to rely on a by-law, make sure it is drafted properly (irrespective of who drafted it). Unfortunately, many by-laws are similar to the one above. So, we recommend a review of the current by-laws by us if in doubt – There is a real risk that the responsibilities of the common property so affected by the works are not transferred and remain with the owners corporation.
More Information
Please contact our Property/Strata law team at Matthews Folbigg Lawyers on 9635 7966 if you would like advice or assistance.
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law. Liability limited by a scheme approved under Professional Standards Legislation.
