Changing or adding in a new by-law

Strata, owners corporation, and body corporate properties all have their own set of by-laws or rules that owners, tenants and visitors must follow

By-laws or building rules are established to assist those living in strata, owners’ corporations, or body corporate properties in maintaining harmony and respect within their shared environment. Over time, the lifestyles and requirements of strata, owners corporation, or body corporate community can evolve. Therefore, changing or adding new by-laws or building rules may sometimes be required to maintain compliance with state laws or support the needs of residents within the property. Most state legislations provide standard or model by-laws and rules as a guideline to help properties comply with their legal obligations. These can be adopted by body corporates and owners corporations or used as a general framework to create a new by-law or building rule tailored to the property. It is important to refer to your local laws to understand the correct process for changing, adding, or removing by-laws or building rules, which can vary across councils and states.

Here are some of the most commonly asked questions and top tips when it comes to changing or adding in a new by-law or building rules in your strata, body corporate, or owners corporation property:

1. Who has the power to add or change a by-law or building rule?
2. What preparation work should I do to add or change a by-law or building rule?
3. Does approval differ from state to state when adding or changing a by-law or building rule?
4. Enforcing by-laws or building rules and managing breaches
5. Common property rights by-law and building rules
6. Limitations on by-laws
7. I’m not a lawyer – how should my by-law be worded?
8. PICA Group’s top tips on how to add or change by-laws

1. Who has the power to add or change a by-law?

Most by-laws or building rules can be changed or created by special resolution (75% majority vote) passed at a duly convened general meeting of the owners corporation or body corporate. All lot owners can suggest or recommend changes and additions to the initial by-laws or rules by submitting them as a motion to be voted on in any general meeting.

2. What preparation work should I do to add or change by-laws and building rules?

Before starting your work to change or add by-laws and building rules, it’s a good idea to check on the level of owner support for the proposed changes you are recommending for the property. To raise a discussion in the meeting, email or mail the statement of intent to the committee secretary four to six weeks before the next general meeting. Attending the annual general meeting (AGM) to present your by-laws or building rules is worthwhile. When doing so, listen to any raised concerns and try to answer them. If your proposal will require work to be carried out on common property (i.e. solar panels) that will impact one or more individual lots, a common property rights by-law will be needed. If you aren’t successful on your first try, consider rewording the by-law or rule addressing other owner’s concerns and attempt to get the revised by-law passed at the next meeting.

3. Does approval differ state to state when adding or changing by-laws?

Does approval differ from state to state when adding or changing by-laws and building rules?

In New South Wales

By-laws can be changed by owners corporation approval at an annual general meeting (AGM) or an extraordinary general meeting. Owners can raise a motion with a proposed new by-law on the agenda of the meeting. A special resolution is required to pass the proposed by-law, which means that it has no more than 25 per cent of votes against it. Your committee should register the newly drafted by-laws with the New South Wales Office of the Registrar General within six months of drafting them. A change to the by-laws of a strata scheme has no effect until the owners corporation has lodged a notification with the Registrar-General.

In Queensland

The body corporate may change its by-laws by passing a motion by special resolution at a general meeting to record a new community management statement that includes changes to the by-laws. This should be registered with the Titles Registry Office within three months of passing the motion to change the by-laws.

In Victoria

The owners may propose new rules to be adopted in a special resolution and secure at least 75 per cent of votes in favour of the new rules. After a copy of the consolidated rules is lodged with Land Use Victoria, they are approved.

In Northern Territory

Under the Unit Titles Act, by-laws are approved through a majority resolution. When granting these changes, the body corporate may outline specific conditions and define the duration that the by-law is enforced. If no time frame is given, the approval stays valid until it is cancelled through a majority resolution.

In Tasmania

As per Section 92 of the Strata Titles Act, a body corporate has the authority to create, amend, or rescind by-laws via a resolution. However, such new, amended, or rescinded by-law comes into effect only after it is registered by the Recorder of Titles, which must happen within three months of being lodged.

4. Enforcing by-laws or building rules and managing breaches

Every owners corporation or body corporate is governed by a set of by-laws or rules that help maintain harmonious community living. Whether you’re a committee member or owner, your strata manager can help you interpret by-laws or rules and review, change, register or enforce them.

In New South Wales

In the event of a by-law breach in New South Wales, the committee has the authority to issue a notice to comply, describing the broken by-law. If mediation fails, the owners corporation can involve the NSW Civil and Administrative Tribunal (NCAT) for further intervention.

In Queensland

In Queensland, the body corporate handles by-law breaches by issuing a contravention notice. If this fails to resolve the issue, the matter may be escalated to the Body Corporate and Community Management (BCCM) Office for dispute resolution, or a fine may be sought from the Magistrate’s Court.

In Victoria

Owners corporations can get mediation assistance from Consumer Affairs Victoria for unresolved by-law breaches. If mediation does not lead to a solution, they can apply for help from the Victorian Civil and Administrative Tribunal (VCAT) for further assistance with by-law enforcement.

In Northern Territory

Under the Unit Title Schemes Act, contravention notices can be issued to individuals they believe are contravening a by-law. If violations persist or disputes arise, an application can be made to the Local Court for further intervention. The relevance of by-laws is crucial for their enforceability, and the body corporate reserves the right to revise them as needed.

In Tasmania

The body corporate can enforce by-laws and rules to through compliance notices. The matter can be further escalated for continued non-compliance by applying to the Resource Management Planning Appeal Tribunal to issue penalties and any other orders it deems appropriate.

5. Common property rights by-law and building rules

A common property rights by-law is a by-law that confers on the owner or owners of a specified lot or lots in the strata scheme a right of exclusive use and enjoyment of the whole or any part of the common property. A common property rights by-law needs a special resolution to pass and written consent of each owner on whom the by-law confers rights or special privileges. It must also detail the responsibility for maintenance and upkeep of the relevant common property.

6. Limitations on by-laws and building rules

The creation of by-laws or building rules is subject to restrictions and should not:

• Be inconsistent with relevant state or federal law.
• Be unjust, harsh, unconscionable, or oppressive.
• Restrict the type of residential use.
• Prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.
• Discriminate between types of occupiers.

7. I’m not a lawyer – how should my by-law be worded?

The wording of the by-law is critical as it can have legal consequences. We strongly advise having a specialist strata lawyer draft any new by-laws or building rules or make the necessary amendments to existing ones.

8 PICA Group’s top tips on how to add or change by-laws:

Step 1 Write a brief explanation outlining the purpose and intent of your proposed by-law/rule change and circulate it to owners for an indication of support. Step 2 If there is strong support for the change, you may wish to engage a strata lawyer to draft the by-law and explanatory note to get it as a motion onto the agenda of the next AGM. Note: In NSW, there is a requirement for an owner, or person entitled to vote, who submits a motion also to provide an explanatory note. Step 3 Submit your motion to the committee at least four weeks prior for inclusion on the agenda of the next AGM. Step 4 Get your proposed motion approved by a majority vote at the AGM. Step 5 Check that your strata managing agent registers the approved by-law with your state’s land registry office. If you’d like to learn more about dealing with common strata problems for your strata property, download your free Community Living guide on by-laws. Or for a consultation by our Kemps Petersons Legal team, click here.