Sunday, 25th August 2019

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ccbaxter
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Last seen: 5 years 38 weeks ago
Joined: 26/11/2013

Hello, first timer here.

I'm hoping someone can answer two questions for me. I'm not a lawyer and can't afford one but I'm pursuing a matter which hinges on the following questions.

1. Under the NSW Strata Titles Act 1973, did by-laws have to be registered within two years? I have heard this requirement may have been only added years later, maybe in '84 or '87; so something passed in '75 but not registered for four years might be OK.

2. Again, under the NSW Strata Titles Act 1973, if areas of Common Property were given to each of eight owners for Exclusive Use car spaces by the (then) Body Corporate through a by-law, and nothing whatsoever was said about maintenance of the area, does the (now) Owners Corporation have to maintain the area, or do the Lots with the Exclusive Use car spaces have to maintain it? There's an argument about whether the OC needs to pay thousands soon for concreting, or the Exclusive Users should pay.

There is great angst in our strata about this matter.

James Moir
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Last seen: 2 years 8 weeks ago
Joined: 04/10/2011

Hi

Firstly, this post might be better located in the NSW part of the forum.

But to answer your questions:

1. I can check this, but I think if it is registered this won't matter. With the 2-year requirement now, the LPI won't accept by-laws lodged after this time. There are only restricted opportunities to overturn by-laws, including:

- section 157 of the Act - "having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property"

- section 158 - the owners corporation proposes the repeal of the by-law and the owner unreasonably refuses

- section 159 - "An Adjudicator may make an order declaring a by-law to be invalid if the Adjudicator considers that an owners corporation did not have the power to make the by-law"

If the by-law got registered late, an argument under section 157 or 158 is theoretically possible, however unlikely if it was registered a long time ago. A late lodgement or registration of a by-law is not one of these reasons to overturn a by-law.

2. Certainly under the current Act, if you say nothing in the by-law, then the OC remains responsible. I haven't checked the old Act, but I would assume it would be the same. I doubt you can transfer maintenance and repair obligations to an owner without specifically saying it in the by-law.

I hope that helps.

Regards

James Moir
J S Mueller & Co Solicitors
T: (02) 9562 1266
F: (02) 9567 8551
E: [email protected]

mini
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Last seen: 1 year 40 weeks ago
Joined: 13/05/2013

Hi ccbaxter,

1. I don't have a copy of the repealed Strata Titles Act with me at the moment, but from what I recall s 58 of that act did require the by-law to be registered in 2 years. But proving your claim to challenge the validity of the by-law on that basis may be onerous if it was registered so long ago. Also, under the old act (before 1 March 1988) an unanimous resolution was required to make an exclusive use by-law. That requirement has since been changed to be a special resolution being required.

2. It is likely that the owners corporation would have to maintain it. I think there's a CTTT case which went onto appeal at the supreme court that more or less confirms this. I don't think the old act required the by-law to specify who was responsible for the maintenance (this is from memory). You could probably make an application for order under s 158 of the Strata Schemes Management Act 1996 for an adjudicator to repeal the said by-laws on the basis that the conditions for upkeep of that common property subject to exclusive use are unjust. But you should seek legal advice before doing so because there is more involved that what you would think.

Hope this helps

mini
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Last seen: 1 year 40 weeks ago
Joined: 13/05/2013

James Moir wrote:
2. Certainly under the current Act, if you say nothing in the by-law, then the OC remains responsible.

I thought an exclusive use by-law is invalid if it doesn't say who is responsible for the maintenance and upkeep of the relevant part of common property. Because s 54(1) says that:

"A by-law to which this Division applies must:

(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or

(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep."

It would seem to me that, because of the wording of s 54, compliance with that section is mandatory. It requires the by-law to take either of the two options set out therein. If the legislature intended that the owners corporation is to remain responsible for the upkeep in default then it would've worded s 54 to be something like "the owners corporation remains responsible for the proper maintenance of and keeping in a state of good and serviceable repair the common property or relevant part of it unless that responsibility is imposed on the owner or owners concerned".

My view seems to be confirmed by the wording of s 65A(3) concerning alterations to the common property.

billen ben
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Last seen: 23 weeks 23 hours ago
Joined: 11/01/2012

And must means must; according to Justice Pembroke in the Bakkante case and Justice Rothman in the Sahade case.
The term must when appearing in procedural parts of the Act appears to indicate an imperative, a compulsion, strict, mandatory, there is no half way house, etc etc according to Bakkante and Sahade. And when people do not meet with the must requirement then invalidity seems to be the common outcome.
Section 54(1) appears procedural as it specifies two options and the process appears to be "must" choose one, i.e. must choose a or b.

Must appears over 250 times in the Act, do we need a definition for it every-time it appears or do we have a definition given what comes out of the Supreme Court?

Must means must and failure means invalidity. I like the simplicity.

n/a
mini
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Last seen: 1 year 40 weeks ago
Joined: 13/05/2013

James Moir wrote:
2. Certainly under the current Act, if you say nothing in the by-law, then the OC remains responsible. I haven't checked the old Act, but I would assume it would be the same. I doubt you can transfer maintenance and repair obligations to an owner without specifically saying it in the by-law.

James,

I just checked the old act (Strata Titles Act 1973) and s 58(9) of that act says:

"The proprietor for the time being of a lot in respect of which a by-law referred to in subsection (7) is in force—

(a) ...

(b) is, unless excused by the by-law, responsible for the performance of the duty of the body corporate under section 68 (1) (b) (i) in respect of the common property, or the part of the common property, to which the by-law relates."

Section 68(1)(b) of that act is the equivalent to s 62(1) of the current SSMA.

So I guess that answer's the op's question (although perhaps a bit too late).