By-laws are a constant source of disputes because they are one of the most significant distinguishing factors as between strata title and green title housing. A person living in a standalone house has no by-laws governing their conduct and prescribing what they can and can’t do in and around their own home. Strata title is vastly different in this regard and it’s a hard concept for people to grapple with if traditionally accustomed to green title living.
The other factor to add into the mix is section 35(1) of WA’s Strata Titles Act (STA) which obliges the strata company to enforce its by-laws. This results in a potent mix of expectations and obligations with massive potential for them to become misaligned.
Disputes can therefore be minimised if expectations are brought more closely in line with the scope of the strata company’s obligations ‘to enforce’. Manage expectations and reduce the instances of interference with rights by the by-laws, and the opposing forces become closer aligned.
The following are ten tips for reducing strata disputes in WA. Not all are about enforcing by-laws, but all are intended to gain and maintain respect for and greater compliance with by-laws.
1. Grant permission.
Many by-laws prohibit certain activities or conduct “without the consent” of the Council or the strata company. In those cases, it is intended that the by-laws operate with some flexibility. It is intended that the Council or the strata company use its discretion to grant consent reasonably. In such cases, a proprietor can be invited to apply for consent, and if it is reasonable to do so, consent should be granted. Of course there will be situations where consent is not appropriate and a by-law needs to be enforced, such as dumping rubbish on common property or constant offensive loud noises and swearing.
Make the by-laws easily accessible to proprietors and occupiers. Publicise particular by-laws from time to time. Schedule regular reviews of the by-laws and invite input into the appropriateness and workability of them.
How many breaches occur because people didn’t know they were breaching? If owners and occupiers are not only familiar with but have a sense of ownership and control over the by-laws, compliance will increase.
3. Get rid of by-laws that are unworkable, irrelevant or inappropriate.
Are the by-laws appropriate to your scheme? Do they need amending?
For example, is it necessary to require the supervision of children on common property in a 2 lot scheme? Or to prohibit timber flooring where no lot is above another?
4. Pass the buck.
The strata company is not the only authority responsible for keeping occupiers accountable for appropriate behaviours.
Noise is one of the most difficult complaints to resolve. If there is a tenant in the premises having parties every weekend, call the police or the local council who have far greater powers to deal with matters quickly than the strata company.
Similarly, parking breaches are a continual problem, but many local government authorities will enforce illegal parking in return for payment of a fee. Deal with it not from the point of view of by-law enforcement, but from the point of view of other laws being breached and leave it to other law enforcement agencies.
5. Use signs and place them appropriately.
Signs have psychological impact. Not only do signs ensure that occupiers are aware of the by-laws (see point #2 ‘Educate’), but most people will comply, being embarrassed to breach right in front of a sign.
6. Alternative dispute resolution.
Consider implementing a by-law that provides for the informal resolution of disputes, giving the strata company an avenue through which to act in compliance with its duty to enforce the by-laws and which it will continue to have control over.
Note that if there is a dispute resolution procedure in by-laws it is mandatory that it be utilised before any application can be made to State Administrative Tribunal (SAT).
7. The $500 sting.
Implement a by-law that provides penalties for non-compliance. It will not only be a disincentive for breach, but will also enable proceedings to be brought under s103I of the Act. The penalty cannot exceed $500.
8. Know the by-law.
Consider and, if necessary, get advice on by-law interpretation and meaning, its validity and its proper enactment. If the respondent wants to continue the activity and oppose the application for enforcement, they will be looking at all of these avenues as a way out.
Consider the meanings of terms such as “not in keeping”, “state of good repair”, “unreasonable interference” and “reasonable steps”.
9. Make sure you have evidence.
In order for an action to be successful, you need to ensure that you have comprehensive and relevant evidence in its support.
10. Cautiously play the damages or injunction claim card.
Remember that by-laws are a statutory contract. The breach of a contract gives rise to the same rights and remedies to any parties to that contract as any other contract: injunctions, specific performance and damages.
If all else fails, proceedings for breach of contract might be available. But proceed with caution. If the Act provides an adequate remedy for the breach, and proceedings are taken outside the Act, there can be adverse costs consequences.
Rachel Cosentino is a Business & Specialist litigation lawyer in Perth.