Strata laws in Western Australia: 10 Tips for Minimising Disputes

in Business Law by Rachel Cosentino on October 11, 2013 - 31 Comments
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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.

2. Educate.

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.

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31 Responses to “Strata laws in Western Australia: 10 Tips for Minimising Disputes”

  1. Akash Arora
    October 21, 2013 at 10:16 am #

    Thank you Rachel Cosentino for such a nice and informative post to decrease the disputes. I am really impressed. You gave us a very effectable tips for this.

  2. ron o
    March 9, 2014 at 1:11 pm #

    I have read but doesn’t seem to cover problem im having… My strata commonwall has water running onto it to it from my strata neighbour gutters overflowing into my property onto common wall creating damp. Is there a ruling on water discharge from adjacent property being strata.

    Thanks Ron

    • Slater & Gordon
      March 13, 2014 at 9:10 am #

      Dear Ron,
      It is difficult to give you a definitive answer to your question about the liability for water damage from an adjoining property without viewing the strata plan and understanding the exact source and cause of the water seepage. The strata plan itself interpreted in accordance with the Strata Titles Act shows which parts of the scheme are common property and which parts form the owners’ lots. The gutters may or may not be common property depending on the scheme. Ultimately, the strata company is responsible for the common property and any damage that results from the common property or defects on common property. However if the gutters are part of a lot, then the lot owner may be liable. There is also the possibility of both the strata company and one or more lot owners being liable for damage.
      If you are unsure whether the cause of the water seepage is from defects in common property or a lot owners’ property, you can seek further legal advice.
      I hope this helps
      Regards
      Rachel
      Slater & Gordon Perth

  3. Lynne
    March 25, 2014 at 8:20 pm #

    Thank you for,the info :) How hard is it to change strata bylaws, and what is the process to do this? I am the secretary on our Council of Owners and we have a couple of bylaws that are no longer relevant to the estate. We also would like to amend some other bylaws. Thanks :)

    • Slater & Gordon
      April 8, 2014 at 11:28 am #

      Hi Lynne. It depends on the nature of the by-law to be amended. Schedule 1 by-laws can be amended by a General Meeting of the strata company resolving to approve the amendment by a resolution without dissent. The requirements for a resolution without dissent are set out in the Act. Schedule 2 by-laws can be amended by a General Meeting of the strata company resolving to approve the amendment by a special resolution. Hope this information helps.
      Regards
      Rachel Cosentino

  4. Jeff
    May 26, 2014 at 4:31 pm #

    Can the strata that I have a unit in build on the neighbouring property. They are looking at doing some landscaping on our land and the land next to our border. This encroaches on land next to us.

    • Slater & Gordon
      June 4, 2014 at 12:49 pm #

      Hi Jeff

      The answer is generally no, unless there is the agreement from the neighbour. It seems you are talking about landscaping rather than building. It is not unusual for a neighbouring property to agree to allow some landscaping to occur, for example often neighbours will mow the verge or lawn on the adjacent property as part of an agreed arrangement.

      Hope this information is of assistance.
      Rachel

  5. lana
    May 27, 2014 at 1:26 pm #

    Hi,I would very much appreciate the information how to deal with the neighbor-pettifogger? How to defend yourself against unfair accusation. I believe it should be something to protect from it.The Act isn\’t very specific about the level of noise and illumination (that was totally strange to be noticed in a accusation I recently saw – the neighbor doesn\’t like the light turned on in another house). So it is quite a disputable issue for both sides.Regards,Lana

    • Slater & Gordon
      June 4, 2014 at 12:49 pm #

      Hi Lana

      Unfair accusations is not really an area covered by strata titles law. The area of law that might apply is defamation. As to levels of illumination and noise, standard by-laws which apply in most schemes do prohibit occupiers from making “undue noise”. What is “undue noise” is not black and white and depends on the specific circumstances. The standard by-laws do not deal with illumination.

      Hope this helps,
      Rachel

  6. Victoria
    June 23, 2014 at 5:16 am #

    I have an ongoing damp problem caused by poor maintenance of the waterproofing of a common structure adjoining my apartment. The problem was brought to the Strata company\’s attention 6 months ago and repairs have still not been carried out. Now they say it is too wet for the work to take place. Is there any legal action I can take? I\’m not sure what my rights are here. Any advice much appreciated. Regards

    • Slater & Gordon
      June 26, 2014 at 11:28 am #

      Hi Victoria
      The Strata Titles Act contains a specific provision which enables an owner to make an application to the State Administrative Tribunal if the Strata Company has failed in its duty to maintain, repair or replace common property.
      Hope that helps
      Rachel.

  7. linda
    June 26, 2014 at 3:09 am #

    hai rachel i seem have a problem with my starta. it\’s a 6 town house, and they want it to be paint outside. and they give me invoce 00 for painting. so i just send them mail, to ask if i can do the paint my self with the colour to match their specifcation, instead of wasting a lot of money. but the replay is so un satisfied, that they don\’t allow me to do it my self and have to be paint by them.well is there is any laws for them to make me go by their rules, or is there anything i can do about this matter, cos it\’s feel like a rip off.it\’s just seem unfair that i have to spent so much money just to paint outside of the house.thanks, hope you can advice me

    • Slater & Gordon
      June 26, 2014 at 12:18 pm #

      Hi Linda, the answer to your question depends on whether the outside face of your town house is common property or is part of your lot. I would assume from what is going on at the moment that it is common property in which case, under WA laws, the strata company has the sole obligation to control, manage, repair and paint the common property. I imagine what the strata company is trying to achieve is consistency in appearance. If they let all owners do their own painting it could potentially result in the scheme having an inconsistent appearance and it would make managing any defects, accidents and liabilities very complex for the strata company to manage.

      Hope this helps
      Regards
      Rachel

  8. Bettina\\\\'s
    June 29, 2014 at 11:56 am #

    Hi RachelI am part of a strata complex where all areas out side the inner walls are common property. Over the past 30 years owners have erected (with approval) garages, patios, sheds without any by-law. An owner now like to erect a large brick room on common property without a by-law. We have no exclusive use by-law.My question is: what are the consequences of not having a by-law in place for all these structures.Thanks for your blog.

    • Slater & Gordon
      July 3, 2014 at 5:06 pm #

      Hi Bettina. This is not uncommon with older schemes. I strongly encourage you and your co-owners to get advice about passing an exclusive use by-law. Without an exclusive use by-law in place, owners run risks such as the strata company revoking its agreement and having to pull structures down, and prospective purchasers being worried about the uncertainty of what they are buying.
      Thanks for commenting on our blog.
      Regards, Rachel.

  9. Judy
    July 1, 2014 at 4:17 pm #

    Hi Rachel,If an couple own a lot in a strata property and own jointly can the strata council expect a proxy from both owners if both attend meetings together? Does every owner that has a financial interest in their lot have to provide proxies if they do not attend the meeting but one of their partners attends strata meetings? Also, what is the requirement on which strata council management committee members in a self managed company are allowed to enter into a lot ie do all committee members and council of management have to look at damage and or alterations done within the lot? If for example the treasurer has come into the lot and is satisfied with the damage/alteration can the for example the secretary demand to have a look at the inside of said lot?Regards,Judy

    • Slater & Gordon
      July 3, 2014 at 5:04 pm #

      Hi Judy. The exercise of votes by proprietors is generally dealt with in the scheme’s by-laws. You need to check the by-laws for your particular scheme, but in the case of the standard Schedule 1 by-laws, co-owners generally need to jointly appoint a proxy in order to vote. If you cannot agree on a proxy or you haven’t completed a proxy form, then you cannot vote by a show of hands except where a motion requires a unanimous resolution to pass. You can also vote without a proxy in a poll. As for the power to enter a lot, the Council has the power to delegate its functions to one or more of the Council members. However when a Council member is exercising that function, they are doing so for the Council and not in their own private capacity.
      I hope this information is of assistance.
      Regards
      Rachel

  10. Caroline
    July 6, 2014 at 10:57 am #

    Hi Rachel. Very helpful article – thank you for sharing. If I may trouble you with a question too…
    We are soon to go through the process of authoring by-laws for a new multi-unit development in Perth and was wondering how flexible we can be with them given the Strata Titles Act.
    For example, are we able to require a majority vote in instances where the Strata Titles Act may specify 100% agreement required ?
    I would ring to discuss with you, but it looks difficult to track you down within slater and gordan with only the 1800 number…
    Thanks in advance for your time…

    • Slater & Gordon
      July 8, 2014 at 11:52 am #

      Hi Caroline, thanks for your message.
      While WA’s regime for by-laws is much more flexible than in some other states, there are still limits as to what can and cannot be done in the by-laws. Fundamentally, the by-laws cannot be in conflict with the provisions of the Strata Titles Act so where the Act specifies a particular type of resolution is required the by-laws cannot override the Act and will be invalid to the extent they purport to do so. There are also provisions that require certain types of by-laws to be schedule 1 by-laws.
      I hope this information is of assistance.
      Regards
      Rachel

  11. Scott
    July 16, 2014 at 12:41 am #

    Dear Rachel,

    I am an owner of a commercial premises in a strata arrangement and find the strata manager to be very slow to respond to requests from small (e,g,, replacement parking permits) to large (e.g., cleaning of building windows, signage, and maintenance matters), or simply ignoring communications, or going on leave with matters unresolved etc.. What options are there as there is the one single individual from the real estate company for me to deal with, and his responses appear completely arbitrary.

    Regards

    • Slater & Gordon
      July 18, 2014 at 5:41 pm #

      Hi Scott
      The Strata Manager is really an agent for the Council of Owners. If the manager isn’t responsive, there could be several reasons for that including:
      That its not part of their contracted duties.
      That the strata company has not budgeted for or has insufficient funds to carry out the work.
      That the Council of Owners have instructed the manager in a certain way.
      That there is a dispute about the cause of damage.
      Talk to a member of the Council of Owners and see if you can find out what’s going on. Ultimately if the unresponsiveness means the strata company is neglecting its obligations under the Act, you can apply to SAT for remedial orders.
      I hope this information is of assistance.
      Rachel

  12. Dennis Hayman
    July 17, 2014 at 3:09 pm #

    Hi RachelI want to install a toilet block in my factory unit the strata of twelve units has a comon toilet block. and one unit already has a toilet block. The proposed toilet block would be constructed at my expense. I have mentioned this at a srata meeting and got a no. what is my position?

    • Slater & Gordon
      July 24, 2014 at 9:45 am #

      Hi Dennis, thanks for your question but it is almost impossible for me to give you a sensible answer without seeing the strata plan and knowing whether your proposed construction involves your part lot or common property or both. In any event, you do need approval from the Strata Company, but the grounds that the Strata Company can refuse to approve your proposal will depend on the details in your application and what area is affected. Hope this helps, regards, Rachel.

  13. Michelle
    July 18, 2014 at 5:35 pm #

    Hi Rachel,

    Good article to read.
    If I may trouble you with a question aswell.
    My Strata Manager and his behavior along with certian members of the Council Of Owners is appalling. Recently he cc me on an email that I found unprofessional to say the least. I just finding our Strata Manager to be a law to himself. How does one lay a complaint about their Strata Manager without involving the Council of Owners due to their apparent friendship?
    Thankyou in advance.

    • Slater & Gordon
      July 24, 2014 at 9:44 am #

      Hi Michelle. You should let the Council of Owners know about your concerns. There is an industry body which in WA is Strata Community Australia (WA) Inc. Strata Managers who are members of SCA are bound by a Code of Conduct. If that Code of Conduct has been breached, you can lodge a complaint with SCA(WA) Inc who will investigate your complaint. Unfortunately there is not much you can do if the Strata Manager is not a member of SCA. This is why it is strongly recommended that Strata Companies appoint Strata Managers who are members of SCA, as they are bound by a Code of Conduct, and even better Strata Managers who are accredited by SCA.

  14. Jo
    July 22, 2014 at 5:23 pm #

    My strata company is telling me I cant park my jet skis in my own car bay – which I own as part of my building (in fact I am allocated 2) because they are not a car ? These seams ridiculous to me and I am willing to go to court over it – what is the law regarding this This is a particularly troublesome woman who is a new owner and has caused many problems since she arrived – I am most certain she is responsible

    • Slater & Gordon
      July 24, 2014 at 11:10 am #

      Hi Jo, thanks for your comment. I suggest you ask the Council of Owners to explain to you the reason that you have been given this direction. It might be that the by-laws of the scheme limit what use can be made of car bays. If this is the case, I’m affraid the strata company may be right because it has an obligation under the Act to enforce the by-laws. I hope this information helps. Regards, Rachel.

  15. Geordon
    July 27, 2014 at 2:14 pm #

    Hi, to change a bylaw such as no dogs ,I assume it needs every one in the strata to agree.If as we do there is a commitee (5 people) can they decide on behalf of the rest but have to be 100% agreement? Can a one off exception be made if say the dog is a guide dog or kept inside all the time which is not binding ? Ie Future owners would still have to comply with the original no dogs policy?

    • Slater & Gordon
      August 8, 2014 at 12:41 pm #

      Hi Geordon
      In WA it is actually against the Strata Titles Act to prohibit guide dogs from strata schemes. So a by-law which purported to ban guide dogs may be invalid. Other by-laws regarding pets need to be passed or amended by a special resolution of proprietors in a general meeting. The Council has no power to make or amend by-laws.
      Hope this information helps.
      Regards
      Rachel

  16. Francis
    August 7, 2014 at 3:07 am #

    HiI\’ve recently moved into a new apartment building and the neighbours above me have wooden floor boards. I\’m frustrated as I can hear constant thudding of footsteps, chairs scraping across the floor etc. What can I do? I was my understanding that you can\’t have wooden flooring unless the developers met strict criteria. Thanks

    • Slater & Gordon
      August 12, 2014 at 5:00 pm #

      Hi Francis, thanks for your message. I suggest you talk to your Council of Owners. There may be a by-law which prescribes the types of materials that can be used in flooring, or prohibits timber flooring. Your Council of Owners perform the strata company’s functions and powers under the Act of enforcing the by-laws. They can investigate whether there is a breach of the by-laws and can take the appropriate remedial action if there is. Of course if the occupiers above are tenants and not owners, it is unlikely they will need to do anything, it is the owner who will likely have to remedy any breach. I hope this information helps, regards, Rachel.

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