What is the DIY By-law Service

DIY By-law service allows a lot owner to prepare their own by-law in a timely and cost effective manner. DIY By-laws allows an owner to create their own by-law for approval of the owners corporation. Provided that you have all of the necessary documents, DIY By-law shall guide you through a series of steps with you receiving an instant by-law as the end result. For more information on how the service works please see the video below.

What By-Laws does DIY By-Laws offer?

Works By-Laws.

What jurisdictions does the DIY By-Law service cover?

New South Wales.

What is a by-law?

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.

Why do I need a by-law?

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 yourself. 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.

What do I own and what is common property?

What do i own and what is common property Bannermans

 

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, bath tubs 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.

What are the steps after the by-law is drafted?

Steps once the by-law has been drafted Timeframe and comments
  1. You give the motions (including any annexures) to the managing agent to go on the agenda for the next general meeting.
Timeframe is dependent on you. If you would like us to provide the motions and annexures to the managing agent please let us know.
  1. If a general meeting is not coming up soon or if you need the by-law resolved sooner, you should contact your managing agent to arrange an earlier meeting.
You may be asked to pay the costs of that meeting to which you can agree or not.
  1. The agenda for the general meeting including your motions is sent out to all lot owners usually 21 days before the meeting.
7 clears days’ notice is required for the meeting which excludes the date of the motion being set and the date that the meeting is held, and if the notice is being sent by post, it is deemed served on the 7th working day after it was posted.
  1. Any consent form needs to be signed by you as lot owner and given to the managing agent prior to the vote on the motions.
Prior to the meeting voting on the motions.
  1. The motion and by-law will be put before the general meeting and voted on.
If the motion and by-law are specially resolved, the by-law is made.
  1. You should attend the general meeting to support your motions and address any proposals which might be put to amend or defeat the motions.
Please note that your motion will be defeated if more than 25% of the unit entitlements present and entitled to vote at that meeting vote against the motion.
  1. If the motions are not approved you can seek that the NSW Civil and Administrative Tribunal overturn that decision.
Please contact us if further information is required.
  1. The by-law needs to be registered at the Lands Department within 6 months of being made and in the form of a consolidated version of the scheme’s existing by-laws that incorporates the change.
Only after the by-law is registered the works can commence. Please let us know the outcome of the meeting and advise us whether the managing agent or our office will be registering the by-law.

What documents do I need before starting the process?

  • 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.

What are cosmetic 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.

What approval is required for cosmetic works?

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

Which by-laws shall apply to my strata scheme?

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).

This is too hard – can I have a lawyer draft my by-law?

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

Where can I get documents used for creating the by-law?

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

What by-laws should you ask for a fee proposal from Bannermans Lawyers for?

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

Who are Bannermans Lawyers?

What additional services can Bannermans Lawyers provide for your by-law?

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

Why are owners corporations required to review their by-laws within 12 months?

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 Bannermans Lawyers if you would like to discuss this further.

What are the main issues about consolidation of by-laws?

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.

Should an owner seeking to register a by-law for their benefit be lumbered with the additional costs to consolidate?

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.

What is the process after motion for minor renovations is drafted?

Steps once the by-law has been drafted Timeframe and comments
  1. You give the motions (including any annexures) to the managing agent to go on the agenda for the next general meeting.
Timeframe is dependent on you. If you would like us to provide the motions and annexures to the managing agent please let us know.
  1. If a general meeting is not coming up soon or if you need the by-law resolved sooner, you should contact your managing agent to arrange an earlier meeting.
You may be asked to pay the costs of that meeting to which you can agree or not.
  1. The agenda for the general meeting including your motions is sent out to all lot owners usually 14 days before the meeting.
7 clears days’ notice is required for the meeting and if the notice is being sent by post, 4 business days needs to be allowed for postage.
  1. The motion will be put before the general meeting and voted on.
If the motion is ordinarily resolved, the works can commence immediately.
  1. You should attend the general meeting to support your motions and address any proposals which might be put to amend or defeat the motions.
Please note that your motion will be defeated if more than 50% of the unit entitlements entitled to vote at that meeting vote against the motion.
  1. If the motions are not approved you can seek that the NSW Civil and Administrative Tribunal overturn that decision.
Please contact us if further information is required.