New South Wales

By-laws facilitate the administration of the Strata Scheme. They cover the use of common property and the behaviour of occupants and also deal with many other.

Many owners may be tempted to “keep it simple” when renovating their apartment and not request approval from the owners corporation, or a by-law. Strata committees may take a similar view, wishing to minimise the number of general meetings and the number of motions at those general meetings. However, this is a bad idea, for both lot owners and owners corporations. Some things to consider:

• Renovations will frequently involve alteration of some common property requiring owners corporation approval under provisions of the Strata Schemes Management Act 2015. Often a by-law is also required, but not always.
• With the reform of the strata laws on 30 November 2016, approval for some classes of works is now simpler, and a broad range of minor cosmetic works do not even require any approval. However, as a result there are now more categories of works and working out whether you require approval (and if so, what approval) and whether you require a by-law has become more complex. These classes of works include:
  1. Cosmetic work that can be carried out without seeking approval;
  2. Minor renovations that require approval by ordinary resolution at a general meeting;
  3. Works to be performed under a ‘property rights by-law’. These will require approval by special resolution at a general meeting, and then registration of the approved by-law; and
  4. Other types of works altering common property that do not fall into the above 3 categories. These require approval by special resolution at a general meeting and may also require a by-law.
• This service will help you to work out whether you require any approval, and if so, what approval, and also whether you need a by-law. In most cases it will then prepare for you all required documentation to request approval, and if applicable, the by-law.
• Preparing an appropriate motion and by-law by this service is generally a quick, easy, and inexpensive exercise, and provides a well drafted balanced by-law that is likely to be acceptable to both the owners corporation and you. In most cases you will receive your documents immediately, making the process much simpler and faster than briefing a lawyer in the more usual way.
• As a Lot owner you benefit from a by-law. Without one, you may not be able to retain or have exclusive use of the works (depending upon the nature of the works), and registration of a by-law will make the lot more attractive to a buyer. Without one, in the worst-case scenario the owners corporation may take action to have the works removed.
• The owners corporation benefits from a by-law, as a by-law can create clear and transferable rights and obligations and can allocate maintenance obligations in relation to the works. They are therefore also attractive to the owners corporation.

• Bathroom (Waterproofing)
• Kitchen
• Ensuite
• Balcony
• Flooring

Comments:
For any lot owner and for an owners corporation, the really important question of who owns what needs to be established as the answer will dictate how a strata scheme is correctly managed and  who is responsible for what parts of a strata scheme.
The picture adjacent is an extract from a typical strata plan. Clearly this does not tell you all of the details about what is common property and what is lot property, which is described by the  relevant legislation and case law.

General position (subject to exceptions)
The general rule applicable to the majority of strata schemes registered after 1 July 1974 is:

• The structures located on the solid thick line, such as, that shown above at the registration of the strata plan are common property.
• The ceiling , the structure of the floor including fixed tiles or floorboards, the electrical wiring located in the ceiling, external windows and balcony doors are usually all items of common property.
• Internal walls, not shown on a strata plan are lot property and a structure located on a thin line is usually lot property.
• Carpet, light fittings, blinds, curtains, toilet bowls, bathtubs and kitchen cupboards will all usually be lot property and the responsibility of a Lot owner.

Exceptions

The following exceptions apply:

• The adjacent general position is provided as a guide.
• The general position does not apply to strata plans registered before July 1974.
• To a limited extent notations on the strata plan can modify the general position.
• Owners or owners corporations can with requisite authorisation alter, add to or remove common property after registration of the plan.

There is no ‘one size fits all’ answer so if in doubt, ask an expert to work it out.

• A copy of the strata plan – to determine which parts are common property and lot property;
• Up to date common property title search – to ensure that you have all of the registered change of by-laws that apply to your scheme;
• The schemes by-laws and change of by-laws – to ensure that the by-law that you intend on making may be made without contravening the schemes by-laws; and
• Plans and specifications relating to the works and/or exclusive use areas – to clearly define the works and parts of the common property required to keep the works.

Types of works: Cosmetic works are very minor internal works such as:

• installing or replacing hooks, nails or screws for hanging paintings and other things on walls;
• installing or replacing handrails;
• painting;
• filling minor holes and cracks in internal walls;
• laying carpet;
• installing or replacing built-in wardrobes;
• installing or replacing internal blinds and curtains.

None. No formal approval of the owners corporation is required.

This will depend on the year of registration of the strata scheme and any by-laws that were registered with the scheme (also known as developer by-laws).

If you would be more comfortable having a lawyer draft the by-law for you, please complete the form below and insert the details for a fixed fee proposal from Bannermans Lawyers.

The above documents should be available from the strata committee or strata manager for your strata scheme.

Any by-laws that are not for works – e.g. pet by-laws, or where the works are particularly unusual and complicated.

http://www.bannermans.com.au/ 

• registration of by-laws;
• by-law consolidation;
• by-law review;
• Replacement of Certificate of Title Applications; and
• advice regarding your by-laws.

Clause 4(1) of Schedule 3 of the SSMA 2015 requires owners corporations to do so and due to the substantial changes under the SSMA 2015, which have an overriding effect on by-laws there is considerable risk that owners corporations will have wording in their by-laws that will be of no force and effect. Please contact us if you would like to discuss this further.

Under section 141 of the SSMA 2015 the secretary of the owners corporation is now required to keep a consolidated set of by-laws.

In addition to this will be increased costs when schemes comply with clause 24 of the Strata Schemes Development Regulations 2016 when it proposes to register a change in the by-laws in the form of a consolidated version that incorporates any change.

As the consolidated version lodged for registration benefits all of the owners, the more reasonable view is that the owners corporation should pay for the costs associated with consolidation of the by-laws.

This is not recommended; each lot owner will have separate works in distinct locations, and this is required to be specified in the by-law. As such we suggest that each lot owner apply for their own by-law.

Please note – If the by-law you require concerns more than one lot, the by-law will need to be drafted by a lawyer. Please contact our office to discuss.

We wouldn’t recommend such a template as it requires significant reworking and determination of whether it is a minor or major renovation which draw different types of approval. We highly suggest using our innovation portal Bannermans DIY By-Laws as this cost effective solution steps owners through the decision process requiring the disclosure of relevant information and then determining whether it is a minor renovation (s110) or major works required a by-law (s108 and s143).

Check out our Renovating in Strata Video to explain the 7 easy steps.