It is normal for disputes to arise within strata titled complexes. The Body Corporate is responsible for enforcing its by laws. The Committee as the administrative arm of the Body Corporate is usually responsible for ensuring all owners and occupiers comply with the by laws. However, Owners and Occupiers can also commence enforcement action if certain conditions are met.
It is important that all parties involved understand that the legislation sets out preliminary procedures for applications seeking to enforce body corporate by-laws.
Please see below the process that Strata Management Group recommends buildings take when a breach is reported or identified-
1. Body Corporate receives Form 1 from Owner/Occupier (the “complainant”) about another Owner or Occupier breaching the by laws;
2. Body Corporate committee reviews the Form 1 against the by laws and confirms that the issues raised are in fact a breach of the Body Corporate by laws;
3. Body Corporate makes informal contact to raise concerns with the Owner/Occupier noted in the completed Form 1– breach letter issued;
4. The Body Corporate Manager will ensure that the Owner/Occupier who made original complaint is notified of receipt of the completed Form 1 and by law breach process has begun and a letter has been issued;
5. If notification is received that informal contact did not resolve the breach, then the Body Corporate will Issue aFuture or Continuing By Law Contravention Notice–
Future Contravention Notice: The body corporate may serve a future contravention notice on an owner or occupier if it reasonably believes that the person has contravened a by-law and the circumstances of the contravention make it likely that the contravention will be repeated. This notice would be appropriate where it is known that an owner has a party on the first Friday of every month which always goes on late and contravenes the noise by-law.
Continuing Contravention Notice: The body corporate may give a continuing contravention notice to an owner or occupier where it reasonably believes that the person is contravening a by-law, and where, given the circumstances, it is likely that the contravention will continue. An example of this type of contravention is where an owner or occupier is displaying a sign on the lot in contravention of the by-laws.
6. A Copy of the Contravention Notice is sent to the Occupier of the lot, if tenanted a copy is also to be sent to the Owner;
7. If notification is received that the receipt of the Contravention Notice did not resolve the breach the Body Corporate can lodge an Application with the Body Corporate Commissioners Office to rectify the contravention stated in the notice.
Please note that a person who fails to comply with a contravention notice commits an offence and penalties, up to a maximum of 20 penalty units, may be applied by the court.
The Body Corporate may commence proceedings in the Magistrates Court against an owner/occupier who fails to comply with a contravention notice, alternatively the Body Corporate may lodge a Form 22 Conciliation Application form with the Commissioners Office.
It is important to note that a body corporate or any owner or occupier may bring an application to enforce a by-law without having complied with the applicable preliminary procedures only if:
a. The by-law contravention is incidental to an application for any order [under Act, section 281(1)] to repair damage or reimburse an amount paid for carrying out repairs;
b. The application is for an interim order and the applicant reasonably believes that special circumstances apply which make it necessary for the dispute to be resolved urgently.
Special circumstances may apply if the by-law contravention is:
a. likely to cause injury to people or serious damage to property; or
b. a risk to people’s health or safety; or
c. is causing a serious nuisance to people; or
d. otherwise gives rise to an emergency.