Scheme by-laws are the rules the strata company, owners, occupiers and the owner of a leasehold scheme need to abide by. It is important all owners and occupiers familiarise themselves with their scheme’s by-laws.
The strata company has broad powers to make, amend and repeal by-laws. In addition, by-laws cannot be inconsistent with the Act, the Strata Titles (General) Regulations 2019 or any other written law. SAT is given the power to determine the validity of by-laws.
By-laws can be declared invalid for several reasons, including if they are:
oppressive or unreasonable, or
unfairly prejudicial to or unfairly discriminatory against one or more owners.
The by-laws that apply to all existing strata companies are:
the by-laws registered for the scheme
if there are no by-laws registered for the scheme, the governance and conduct by-laws in Schedules 1 and 2 (respectively) of the Act or
a combination of the above.
A governance by-law is defined in section 3(1) of the Act to mean a by-law dealing with the:
governance of the scheme
subdivision or development of the land subdivided by the scheme (other than landscaping)
exclusive use of common property in the scheme (exclusive use by-laws)
A governance by-law includes (but is not limited to):
the by-laws set out in Schedule 1 of the Act
by-laws concerning the constitution or procedures of the council of the strata company, officers of the strata company, and procedures for general meetings of the strata company
by-laws concerning contributions, levies or money payable by an owner to a strata company
A conduct by-law includes but is not limited to a by-law:
as set out in Schedule 2 of the Act
that deals with specified conduct of an owner or occupier
that deals with a matter relating to the management, control, use and enjoyment of a lot or common property
Making, amending or repealing by-laws in any strata titles scheme
Governance by-laws may only be made, amended or repealed by a resolution without dissent.
Conduct by-laws may only be made, amended or repealed by a special resolution.
All new by-laws must specify whether they are governance or conduct by-laws.
By-laws may be made as a condition of a planning approval of local government, the Western Australian Planning Commission or other authority. These by-laws are called planning (scheme by-laws). These by-laws may not be amended or repealed without the consent of the relevant authority if that is a condition specified in the by-law.
Many schemes draft their own by-laws and while the owners at the time understand what was intended, the by-laws may be interpreted differently by new owners. Many registered by-laws are ambiguous and may be unenforceable from a practical standpoint. It is therefore advisable to have by-laws drafted by an appropriate professional or to seek legal advice.
Care should be taken to make by-laws that are non-discriminatory and can be easily enforced.
Recording of by-laws
See section 48 of the Act
Any new by-law, or the amendment or repeal of an existing by-law must be lodged at Landgate for registration by the Registrar of Titles, within three months of the resolution making the by-law. If you need to wait 28 days after a meeting for the resolution to be confirmed, the by-law must be lodged at Landgate within three months after the date.
The by-law is not effective until registered by the Registrar of Titles. The Registrar of Titles currently registers scheme by-laws and amendments and repeals of by-laws. This is done by making a record on the record of interests and encumbrances on the scheme plan, and not on the individual certificates of title for the lots.
Registering by-laws does not guarantee their validity or enforceability. The Registrar of Titles may, but is not obliged to, examine scheme by-laws lodged for registration for compliance with the Act (section 59).
The application to register the making of a by-law must specify if it is a governance or conduct by-law and include a consolidated set of all the current by-laws for the strata titles scheme
Short-stay accommodation by-laws
Under the Act, by-laws are established as secondary to any other legislation. As a result, by-laws will always have to conform to the planning legislation first and foremost. The Department of Planning, Lands and Heritage or your local government can provide advice regarding the most recent legislative requirements.
While a strata company does not need legislative authority to do short-term rentals, they might choose to set their own by-laws for short-term rentals in their complex. The standard by-laws currently included in the Strata Titles (General) Regulations 2019 don’t include short-term rentals, so an owner can do short-term rentals unless another law prohibits or restricts them from doing so.
A short-stay accommodation by-law would fall into the category of a governance by-law, which would require the strata company to make a resolution without dissent to bring them into effect.
The Act provides that a by-law is invalid if it prohibits or restricts the keeping on the lot of an animal that is used as an assistance animal by a person with a disability who is an owner or occupier of a lot.
The Act provides that an assistance animal has the meaning given in section 9(2) of the Disability Discrimination Act 1992 (Commonwealth). The Act further provides that a by-law is invalid if it prohibits or restricts the use on the parcel (the land in the scheme) of an assistance animal by a person with a disability.
Apart from the above prohibitions and restrictions in the Act, if the conduct by-laws in Schedule 2 of the Act apply to the scheme (conduct by-law 12(c)), an owner or occupier of a lot must not keep animals on the lot or common property after notice is given to such person by the council. The implication in this by-law is that animals can be kept on the lot or common property until further notice is given not to.
A strata company can make different by-laws for the scheme concerning the keeping of pets. Any by-law made in relation to pets could be challenged if it could be argued that it is unfairly prejudicial or discriminatory against one or more lot owners, or oppressive or unreasonable.
Vehicle parking by-laws
Conduct by-law 1(1) in Schedule 2 of the Act provides that an owner or occupier of a lot must take all reasonable steps to ensure that the owner’s or occupier’s visitors comply with the scheme by-laws relating to parking of motor vehicles. Conduct by-law 1(2) then provides that an owner or occupier of a lot must not park or stand any motor or other vehicle on common property, except with the written approval of the strata company.
A strata company may make vehicle and parking by-laws different to the conduct by-laws in Schedule 1 of the Act. Again, any such by-law should not be unfairly prejudicial, discriminatory, oppressive or unreasonable.
A strata company may enter into a contract or arrangement with a local government to enforce laws relating to roads on the parcel and enforcement of local laws.
Exclusive use by-laws
See section 43 of the Act
It is possible to create by-laws granting individual lot owners exclusive use and enjoyment of, or special privileges in respect of, common property or any part of it. Such by-laws will usually require a clear sketch plan of the relevant part of the common property (called special common property). This may be subject to conditions, including obligations to maintain and repair the special common property or may be made subject to a payment or a combination of conditions and payment. The lots that have the benefit of the rights and privileges over the special common property are known as ‘special lots’. A lot owner having the benefit of such a by-law must give written consent to its making, amendment or repeal. Exclusive use by-laws are governance by-laws. To pass a by-law relating to exclusive use and/or special privileges in a two-lot scheme, a unanimous resolution is required. In any other scheme, a resolution without dissent is required.
The details of an exclusive use by-law may include:
terms and conditions of how the occupiers of special lots may use the special common property
details relating to access to the special common property and the provision and keeping of any property (a key, for example)
details of the hours when the special common property may be used
details relating to the condition, maintenance, repair, renewal or replacement of the special common property
details relating to insurance of the special common property to be maintained by the owners of special lots
matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.
It is recommended that the sketch plan identifying the special common property is prepared by a licensed land surveyor. Some older strata plans have notations indicating certain areas are “for the use of” particular lots. These notations do not have any effect, unless an exclusive use by-law has been registered to support them.
See section 40 and 41 of the Act
As with freehold strata titles schemes, every leasehold scheme must have scheme by-laws for the scheme, such as the control, management and maintenance of the building and common property. A leasehold scheme may also have special leasehold by-laws called leasehold by-laws, which provide for the postponement of the expiry day of the scheme or for compensation payable on the expiry of the scheme. These are governance by-laws.
Where a leasehold scheme has no leasehold by-laws and wishes to postpone the expiry day of the scheme, an amendment to the scheme by-laws will be needed to insert leasehold by-laws. This will require a resolution without dissent by the strata company, the agreement of the freehold owner of the leasehold scheme (lessor) and the approval of the Western Australian Planning Commission.
Staged subdivision by-laws
See section 42 of the Act
If a developer wants to undertake the subdivision of a strata titles scheme in stages, they can set out those stages of subdivision in special staged subdivision by-laws, which are governance by-laws.
Staged subdivision by-laws must:
describe in detail the stages of subdivision, and any amendments to the scheme plan and schedule of unit entitlements that will be made on completion of each stage
identify the lots or common property affected by each stage of subdivision
contain details of any additional by-laws, or amendment or repeal of existing by-laws, proposed to be made and registered on the completion of each stage.
When a stage of subdivision is going to be just as it was set out in the staged subdivision by-laws, then the developer can proceed with the necessary works. However, if there have been significant variations to what was proposed in the by-laws (significant variation has the meaning in the Strata Titles (General) Regulations 2019, regulation 49), the developer will need to get a unanimous resolution from the strata company and consents from lot owners and holders of designated interests to be able to register the amendment of the strata titles scheme.
Enforcing scheme by-laws
See section 47 of the Act
If someone has been breaching a by-law and the strata company wants to take enforcement action, it must give a written notice to the person in question. This notice is provided for fairness, and must set out the:
by-law that it is claimed that the person has breached
facts relied on as evidence of the breach
action that the person must take to avoid breaching the by-law.
The following entities can apply to SAT to enforce a by-law:
Mortgagee of a lot in a scheme
The owner of the leasehold scheme, if it is a leasehold scheme
SAT can issue an order to enforce a by-law on the grounds that the:
person has been given the written notice referred to above and has contravened the notice
contravention has had serious adverse consequences for another person
person has contravened the by-law on at least three separate occasions.
The written notice must include an explanation that if an application is made to SAT for enforcement of by-laws, SAT has power to make any order it considers appropriate to resolve the by-law enforcement proceeding. In particular, if SAT is satisfied the by-laws have been contravened, SAT has power to make an order that requires one or more of the following:
pay a specified amount to the strata company by way of penalty
take specified action within a period stated in the order to remedy the contravention or prevent further contraventions
refrain from taking specified action to prevent further contraventions.
The maximum amount SAT can impose by way of penalty is $2,000.
Strata Company Roll
See section 105 of the Act
Every existing and new strata company must keep a roll. It is an offence for a strata company not to do so and attracts a penalty on conviction of up to $3,000.
This requirement does not apply to two lot schemes. It may not apply to three to five lot schemes, provided a scheme by-law has been adopted.
The roll may be kept in any medium and must contain the following particulars:
the name of the strata company
the name and address for service of each member of the council, or officer, of the strata company
the name and address for service of the owner of each lot, each strata manager, any lessee or tenant of a lot and any mortgagee of a lot.