The by-laws of a strata scheme are binding upon lot owners and occupiers alike (see section 135 of the Strata Schemes Management Act 2015 (“Act”)). If a lot owner or occupier breaches one or more of a strata scheme’s by-laws, the owners corporation has the ability to take steps to enforce those by-laws.

In summary, the by-law enforcement process is as follows:

  1. Prior to commencing formal enforcement proceedings, the owners corporation should first issue a letter to the lot owner or occupier to advise of the breach and ask that it cease. A copy of the by-law should be included with the letter.  Where the breach is committed by a tenant, the letter should be issued to both the landlord and the tenant.
  2. If the breach continues despite the initial letter, the owners corporation should serve on the lot owner or occupier a formal notice to comply pursuant to section 146 of the Act (“Notice”, previously section 45 of the Strata Schemes Management Act 1996 (“Old Act”)). The Notice must require the lot owner or occupier to comply with by-law and must include a copy of the by-law in question. The Notice should give the lot owner or occupier a reasonable time to comply with the by-law, for example, 28 days. If more than one by-law has been breached, a separate Notice should be issued in respect of each. A template Notice from NSW Fair Trading can be accessed here. The Notice may be issued by the strata manager if this function has been delegated to the strata manager pursuant to the agency agreement. Otherwise, a resolution of the strata committee is required. The issuing of a notice is an essential step prior to further action being taken against the lot owner or occupier at the NSW Civil & Administrative Tribunal (“NCAT”).
  3. If a Notice is issued and the by-law has still not been complied with by the lot owner or occupier, the owners corporation can apply to NCAT for a penalty order under section 147 of the Act. The strata application form can be found here and is used for all strata disputes. This must occur within 12 months of the Notice. If NCAT is satisfied that the Notice was validly given and the lot owner or occupier has breached the by-law since that Notice, a monetary penalty of up to 10 penalty units (presently $1,100.00) may be payable. This penalty is payable to the owners corporation.
  4. If the lot owner or occupier breaches the same by-law again within 12 months of the monetary penalty, the owners corporation is entitled to apply to NCAT again without issuing a further Notice. If the lot owner or occupier is again found in breach of the by-law, a monetary penalty of up to 20 penalty units (presently $2,200.00) may be payable to the owners corporation.

Steeper penalties are payable for breaching the occupancy limits contained in section 137 of the Act.

So, what changed with the introduction of the Act late last year? There are two main differences between the Old Act and the current Act in terms of by-law enforcement.

Firstly, penalties for breaches of by-laws are payable to the owners corporation rather than NSW Fair Trading. Owners corporations no longer have to go to the expense of by-law enforcement proceedings with no chance of recovering any costs. Section 248 of the Act provides penalties may be recovered from lot owners as if they were a contribution under the Act.

Secondly, owners corporations no longer have the option to seek an order from the NCAT adjudicator requiring the lot owner or occupier to comply with the by-law. Under the Old Act, if an adjudicator’s order was made and there was still no compliance with the by-law, the owners corporation could apply for a penalty order. The new process is that the owners corporation may apply for an NCAT order under section 232 of the Act. If the lot owner or occupier breaches that order, then the next step is to seek a civil penalty.

There is currently a problem with the legislation in that section 202 of the Old Act, which provided for civil penalties for breaches of adjudicator’s orders, no longer exists. We are currently seeking clarification from NCAT in this regard. For more detail on this problem with the legislation, have a listen to Amanda Farmer’s podcast interview with Reena Van Aalst here.

The information contained in this article is not legal advice. This article is intended to provide general information in summary form only. You should not rely on the content of this article as legal advice. If you would like advice specific to you and your situation, please contact us.

27 Responses

  1. If you have been issued a notice to comply for breaking a special by law on 1/05/2018 is it still enforceable after all this time and can you be issued with another breach notice about the same issue.

    1. Hi G, in NSW, the penalty application has to be filed within 12 months of the date of the notice to comply was given. See section 147(4) Strata Schemes Management Act 2015. Yes, you can be issued with another breach notice about the same issue.

  2. I live in a strata scheme which is a subsidiary of a Community Scheme. The Community Scheme consists of one development, the Strata Scheme, and 8 Development lots.

    The Managing Proprietor of the community scheme insists – the maintenance of the Private Access Way is 100% the responsibility of the Strata Scheme. Whereas The Community Management Statement By-Laws 4.4 & 5.2 contradicts that by stating, (The Private Access Way shall be maintained by the Community Association and the proprietors of Community Development lots in accordance with By-Law 5). The upshot of all this is, The Private Access Way is in a terrible state of repair with large potholes etc. The Strata Scheme is deemed 32.1% of the Community Association and the balance 67.9 is owned by the Managing Proprietor. We in the Strata are willing to contribute our 32% if Mr X will contribute his 67%. But for most of the previous 20 yrs, when the strata have paid levies to the Managing Proprietor, he used only that money and personally did repairs himself in a very shoddy way. The Strata now insists that future road repairs be done by a professional company.

    I am sure that the above demonstrates the terrible impasse we now face. He has 68 votes against our 32 at any community meeting. What can we do?

    1. Hi John,

      Thank you for sharing your thoughts. Your concern is now forwarded to Amanda and she will respond to your comment shortly.

    2. Hi John, does the Community Association employ a professional managing agent, or is it managed by this 67% owner? The guidance of a professional manager would probably assist, but I appreciate you won’t be able to get that across the line with Mr X holding 67% of the vote at CA level.
      Is there any chance Mr X is the original developer? If so, the legislation provides for the value of his vote to be reduced…
      Failing that, a Tribunal order may be your only avenue.

  3. Hi Amanda, I have a question. Our Strata Manager has issued a Notice to Comply to a resident at our Strata complex for a parking issue with her vehicle.
    She was doing the right thing and parking at another spot or in her garage. Now she is going back to the parking issue that the notice was for.
    I asked our Strata Manager what are the next steps and she then replied with the following “Your options are to issue another Notice to comply or start Mediation to seek orders through Fair Trading (NSW Civil and Administrative Tribunal). What exactly does she mean “Mediation” is that applying to NCAT for
    a penalty to be given to the resident? Also where she is parking is blocking the view of vehicles using the mirror to see other vehicles coming on the top driveway so is causing a safety issue. Should be give her another Notice to Comply with the safety issue being raised in the notice as well as parking.

    1. Hi Kay, you don’t necessarily need to mediate before seeking a penalty for failure to comply with a notice to comply. It is one of the few areas ‘exempt’ from mediation under the NSW legislation. BUT mediation probably would not hurt, and may even resolve the matter. In your circumstance, where there is a safety issue at play, I’d probably do both: apply for mediation, and while that’s taking its time to happen (at the moment, we are suffering about a 2month wait) file your application for a penalty order. The first directions hearing for that application will probably take about the same amount of time, maybe slightly less: 4 to 6 weeks.

  4. Hi Amanda,

    If our Strata Manager has issued the notice to comply to an occupier, but he continues to breach the by-law (vehicle trespassing on parking space) and refuses to respond to our notice to comply. What should we do? Should we issue the penalty through NCAT or Strata Manager?

    Thank you for your time.
    Best regards,
    Angie

    1. Hi Amanda,

      Sorry to trouble you again. If the tenant breached the by-law, but the owner of the unit refused to provide his contact (name, email, telephone contact), Can we issue the notice to comply to the owner of the unit instead of the tenant?

      Many thanks,
      Angie

      1. Hi Angie, both the strata law and the Residential Tenancies Act require the landlord to provide the tenant’s name to the Owners Corporation. You cannot issue the notice to comply to the owner unless they are the one breaching the by-law.

    2. Hi Angie, if a notice to comply is not complied with, the next step is to apply to the Tribunal for a penalty order. I’d suggest your building obtains legal advice on this process, as it can be technical.

  5. Hi

    I live in a strata complex with a bylaw registered in 2012 under the 1996 strata schemes management act.

    I have recently received a strata breach notice. According to the notice, I have breach x bylaw under the 2015 strata schemes management act however I have not receive any updated strata bylaw apart from the original.

    Is the breach notice still valid since it’s inconsistent to the registered strata bylaw.

    Thanks for your time

    Regards
    Javin

    1. Hi Javin, notices to comply are legal documents that must meet strict technical requirements in order to be valid. I discussed this on my webinar this week, you’ll find that has some helpful information. You can catch the replay here: http://www.stratamembership.com. Also on that page, you’ll find out more about our online community, where I’m helping members with exactly these problems. You have the opportunity to join us on the inside before midnight this Sunday. I hope you’ll take it up. All information over at: http://www.stratamembership.com

  6. No smoking bylaw, how can it be enforced? We have a no smoking bylaw where smoking is not allowed anywhere on the property, even in our own units. There are people who still smoke but do it behind closed doors. What can be done to find these ones?

    1. Hi Murial, NSW by-laws can be enforced by the issue of a Notice to Comply (section 146, Strata Schemes Management Act) and then by seeking a penalty order from the Tribunal (section 147). Alternatively, there is also a Tribunal process that results in an order to comply, rather than a penalty.
      I am assisting owners and committee members with precisely these types of processes over in our online membership community. We’d love for you to join us: http://www.stratamembership.com

  7. Hi Amanda – how can a lot owner bring an issue to NCAT, rather than the Strata Scheme itself? We have a persistent lot that continually breaches a bylaw (nuisance behaviour) and has been served with a Notice to Comply – however the Strata Scheme seems unwilling to pursue the matter.
    Advice from the scheme was that a lot owner can also bring a case to NCAT, with a request that NCAT issue an Order to Comply rather than a penalty – but I seem unable to find under what section this would be?
    Any information you could offer, be most appreciated.

    1. Hi N Ross,

      Yes, an owner can apply to the Tribunal for an order requiring compliance with a by-law. That is separate from the Notice to Comply and penalty order process, which only an Owners Corporation can instigate.

      As for the section, it may depend on the type of behaviour, but generally speaking section 232 covers most disputes: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ssma2015242/s232.html

      I am assisting owners and committee members with precisely these types of processes over in our online membership community. We’d love for you to join us: http://www.stratamembership.com

      Amanda.

  8. I am a Strata Committee chairman of a 8 unit building & a tenant has installed a A/C without permission which both units Are installed on a joint wall , This tenant CLAIMS to be a strata company rival to building &^ has been pushing HER own agenda .
    Owner of unit is grandmother to original tenant & wishes not to be involved.
    As chairman I KNOW committee has final say to advise our strata.
    ARE we correct to enforce compliance.? the drainage water from unit drains straight onto verandah & is picked up by wind blowing onto other tenants living underneath ? AM in need of advice.

  9. Said original tenant has an aggressive nature towards another owners guest with threati behavior & throwing water over them / all over him claiming parking rites over an undercover space which was set up as GUEST parking , Females in building are scared of his attitude What can be done

    1. Dear Peter,

      I am sending this message on behalf of Amanda Farmer.

      Due to the overwhelming demand for Amanda’s services, she is no longer able to personally respond to every comment posted on the public side of the website. The best way to seek Amanda’s guidance is either:

      (a) inside the members-only QandA Forum, enjoyed by paying members of our online community. Membership is just $67/month with no lock-in. Your instant access is here: http://www.stratamembership.com, or

      (b) engaging Amanda as your lawyer, via her legal practice Lawyers Chambers. Amanda’s hourly rate for one-on-one legal services is $770 incl. GST. You can make contact with Amanda’s practice to check her availability by emailing enquiries@lawyerschambers.com.au.

      Richelle
      YSP Support Team

  10. Hi Amanda
    I own and reside in an 8 lot strata, in Western Australia. Back in 2019 I believe, we passed a by law at the AGM and I quote “that no items are permitted in the car port area except for City of Swan garbage bins and vehicles”
    The reason we passed this by law as one of the old tenants had homeless persons living in the carport, we, I thought this by law was to enable the strata manager to enforce a ruling if this happened again.
    Now moving to 2021, 22, I was myself issued with an informal notice from the strata manager who is also owner of two of the units, he said I was in breach of the by law and that if I didn’t comply I’d go to tribunal and get a large fine.

    So, this carport area is part of my lot, entirely, each lot has the carport each attached to our units. These are in no way common property.

    I resumed using my carport for my car as well as a table, which I try to keep in a neat way.

    My argument with the strata manager, just as recently is that the by law is invalid. It is invalid by being unreasonable and maybe oppressive.

    If it were common property, I could completely understand but this is my area, my property. So do you think this by law may be invalid.

    Any help is greatly appreciated

    1. Dear James,

      I am sending this message on behalf of Amanda Farmer.

      Due to the overwhelming demand for Amanda’s services, she is no longer able to personally respond to every comment posted on the public side of the website. The best way to seek Amanda’s guidance is either:

      (a) inside the members-only QandA Forum, enjoyed by paying members of our online community. Membership is just $67/month with no lock-in. Your instant access is here: http://www.stratamembership.com, or

      (b) engaging Amanda as your lawyer, via her legal practice Lawyers Chambers. Amanda’s hourly rate for one-on-one legal services is $770 incl. GST. You can make contact with Amanda’s practice to check her availability by emailing enquiries@lawyerschambers.com.au.

      Richelle
      YSP Support Team

  11. I need some advice about a rental property located in nsw.
    I am currently renting a duplex property with a driveway that has to cross over the first duplex’s drive to get into my own garage. I have 2 cars in which one I park inside the single garage and one I park out the front of the garage. My neighbour has made complaints to the realestate stating I am parking my second car in a common area. I have no strata bylaws in my lease and and not blocking any access to his property. I have to maintain the hedging and gardens out the front in which he claims is a common area. He parks a second car outside of his garage and parks on a diagonal Angle which actually blocks access for my car to get into my property. My question is with no bylaws in my lease where do I stand. My lease says nothing about not being able to park out the front of my garage. My rental agent said to just ignore him but it has been constant since moving in. I feel as tho he is trying to push me out and intimidate me he has berated me out the front and guests I have had coming up the driveway. He lets all his friends and family park out front making me scratch my car on his hedges which I have made no comments or complaints just asked my agent to let him know to park parallel which he is yet to do. Please help where do I stand. Thanks

    1. Hi Zali, your landlord should have provided a copy of the strata by-laws with your lease, so that is something you should ask the agent for.

      However, you will also need someone who knows how to read strata plans to take a look at the specific strata plan for your building, to check whether or not this area is in fact common property. Even if it is, there may be other relevant documents – like a registered easement – that grants rights to use this area.

      I encourage you to join our online membership community, where we can continue this conversation and you can access my further support. All the deatils are here: http://www.StrataMembership.com

  12. What happens in the situation where’s there’s a smoker causing smoke drift, but Strata hasn’t managed it properly? This issue has persisted since Dec 2021. Building Management issued warnings until mid-2022 – which were also ignored. I was told that a Notice to Comply would then be issued… but Strata didn’t actually do this, and they didn’t tell me.

    When the residents continued to smoke in Nov 2022, I alerted Stratra, but they told me that the Notice to Comply had expired – which was untrue as it was under 12 months, and they didn’t even issue at Notice to Comply.

    Over the Christmas period, I was continually subjected to smokedrift from both residents every 2 hours. I was in tears, and I had no other choice but to confront the residents directly. They told me to F-off.

    At the start of 2023, Strata issued a Notice to Comply to the lessor. He told me he “forgot” to issue the previous notice to comply, but if these residents breach the NTC, tell him immediately.

    I was shocked to hear that a Notice to Comply wasn’t issed mid-2022 and we argued about it. He accused me to breaking privacy laws as I had used photos to document the breaches – which I was instructed to do (in writing) so my complaint can move forward.

    Anyway, in Nov 2023, the resident was smoking again *twice*. I immediately informed Strata about the breach of the Notice to Comply. This is how the Strata Agent responded:
    1. He told me he can’t enforce the Notice to Comply as it was the female resident (daughter of the Leasee) – whereas the NTC is limited specifically to the person it’s addressed to – and it doesn’t apply to the Leasee’s other residents and guests). This was weird as every one of my complaints identified two people smoking; so if this was the case, why did he only send out one NTC?
    2. He didn’t even act on the by-law breach of smoking (if the above point was true). I had to remind him that there was two new breaches he did nothing about before he decided to act.
    3. He was not going to take further actions – even to inform the strata committee of the bylaw breach. They only learnt about this when I decided to seek Mediation; upon which, they’ve sided with the Strata Agent (and I’m now considered a trouble maker).

    Mediation is booked in and I’m wondering about my options. I believe the larger of my issues is that the Strata Agent (representing the Strata Committee) mismanaged my issue and deliberately decided against enforcing the bylaw. They had:
    1. Didn’t act when warnings were ignored (thus prolonging the issue).
    2. Lied to me about how NTC complies work – saying it lasted less than 6 months and more warnings needed to be issued AND telling me they were only relevant to the person they were addressed to – not their other residents or their guests.
    3. Threated me with committing illegal acts when I documented breaches by following their instructions. I felt this was designed to shut me up as I was complaining about their mismanagement
    4. Decided NOT to escate to NCAT when the NTC was breached twice with 12 months – not even notifying the Strata Committee of this development
    5. Not acting on the latest breaches until I reminded he spent more time fighting with me than actually doing his job to prevent bylaw breaches.

    I feel that I need to take my Strata Committee to NCAT for their inability to enforce bylaws – especially when there is a straight forward enforcement mechanism in place.

    Appreciate any guidance here.

    1. Hi Michelle,

      I am sending this message on behalf of Amanda Farmer.

      Due to the overwhelming demand for Amanda’s services, she is no longer able to personally respond to every comment posted on the public side of the website.

      The best way to seek Amanda’s guidance is either:

      (a) inside the members-only QandA Forum, enjoyed by paying members of our online community. Membership is just $67/month with no lock-in. Your instant access is here: http://www.stratamembership.com; or

      (b) engaging Amanda as your lawyer, via her legal practice Lawyers Chambers. Amanda’s hourly rate for one-on-one legal services is $750 plus GST. You can make contact with Amanda’s practice to check her availability by emailing enquiries@lawyerschambers.com.au.

      Richelle
      YSP Support Team

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