The orderliness of a strata neighbourhood can often be disrupted because of the behaviour of some residents.
This article looks at the power a strata council has to impose good order through conduct by-laws as well as some limits to that power.
Conduct by-laws are the key mechanism for strata councils to deal with the conduct of lot owners. By-laws also help strata councils to manage and control the use or enjoyment of the common property and the lots in a strata scheme. The discretionary power of a strata company to pass by-laws is significant as it regulates the day-to-day rights of occupiers.
A strata company can use the model by-laws established under the Strata Titles Act 1985 (WA) (Act). It can also repeal, amend or add to them.
Let’s look at some examples of how by-laws can help a strata company regulate conduct and some limitations to that power.
Pets can be a source of friction. People can have strong and differing opinions on dogs barking at unsocial hours, cats roaming outdoors, cleaning up after pets, and allowing dogs off the leash.
Let’s assume the strata company has adopted the model by-law that prohibits keeping a pet after notice is given to the occupier by the strata council.
The strata company would need to give good reasons to the pet owner when they enforce the by-law. The pet owner could, however, still challenge the decision. They could try to argue that the notice discriminates against them. That is the essence of s 119 of the Act, which prohibits doing things that are ‘unfairly prejudicial to or discriminatory’ or are ‘oppressive or unreasonable’.
Then there is the significant limitation of power arising from s 46 of the Act with regard to keeping pets. That section provides that strata companies cannot prohibit the keeping of an assistant animal where a person prescribed under the Act requires it. If it does, then the scheme by-law will be invalid, and the statute law will prevail.
The model by-laws do not specifically regulate the storage of possessions in car bays. They only really address the parking of vehicles.
Thus, the strata council would have no power to stop such storage under the model by-laws. They would only have such power if the strata company had some other by-law that could be interpreted to govern such storage.
However, even if another by-law is introduced, there might still be limits to this power. For example, not all car bays in all strata developments are designated exclusive-use common property. Some strata schemes include car bays as part of a lot. If so, the strata company could not do much about the lot owner’s use of the car bay.
The model by-laws prohibit wearing inadequate clothing and offensive language and behaviour when on common property.
However, they do not govern other behaviours such as smoking, vaping, taking illicit drugs or revving car engines in the early morning hours.
A strata company would therefore have limited scope for regulating anti-social behaviour where its by-laws are not drafted widely enough.
There is one catch-all source of power for strata companies. It is found in s 83 of the Act, which can be used if its by-laws are found to be lacking.
The section prohibits an owner or occupier from using their lot in a way that ‘… interferes unreasonably with the use or enjoyment of another lot or the common property … ’.
However, in a proceeding in the State Administrative Tribunal (SAT), the strata council would have to put significant effort into producing evidence to prove the above.
It is easier to approach the SAT with a breach/no-breach situation under a by-law than to gather and produce evidence of all the surrounding factors which amount to an unreasonable interference with the use or enjoyment of another lot or the common property.
Conduct by-laws are the basis of the power of strata councils to regulate behaviour in their strata scheme. Poorly drafted ones detract from that power. They make it more challenging for the strata council to maintain order in the scheme. The Act may give reserve power to the strata company, but that involves more time, effort and cost than the avenue of enforcing a conduct by-law.
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Tel: 9200 4900
Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.
Article first published in The WA Strata Magazine May 2023