Does the body corporate have to be registered at the Australian Securities Commission?
No, the body corporate automatically comes into existence when the strata scheme is registered by the Recorder of Titles. The corporations law does not apply to a body corporate established under the Act.
What can a lot owner do if the body corporate fails to insure as required by the Strata Titles Act?
The Act requires the body corporate to take out and maintain insurance for all buildings and other improvements on the site and public risk insurance over the common property.
If the body corporate fails to insure, a lot owner may either (i) request an order from the Recorder of Titles pursuant to an application for relief requiring the body corporate to take out the required insurance or (ii) obtain the required insurance and recover the cost from the body corporate by refund or deduction from levied contributions or by order of the Recorder.
What control does the body corporate have over activities by the lot owners on the common property?
The by-laws of the body corporate apply. The Model by-laws apply unless the body corporate has its own by-laws. There are a number of Model by-laws in Schedule 1 of the Act which control the use of common property by lot owners, and the body corporate may enforce these by-laws.
Can a lot owner allow their car space to be used by other people?
It depends on whether the car space is part of the owner's strata lot or is common property. If the car space is part of the lot, the lot owner may allow other people to use the car space. If the car space is common property the body corporate may allocate part of the common property to a particular lot for the purposes of vehicle parking. If the body corporate allocates a parking space to a lot then that parking space may be used by the occupiers of the lot and their visitors.
Can a lot owner keep a pet on their strata lot?
This depends on the by-laws of the body corporate. If the body corporate has its own by-laws these will need to be checked. If the body corporate does not have a by-law which relates to the keeping of animals then the Model by-law will apply. The Model by-law provides that the written approval of the body corporate is required to keep animals on a lot or common property.
Can the body corporate force a lot owner to remove a pet from their strata lot?
This depends on the by-law for the body corporate. If an animal is kept contrary to the by-laws, the body corporate may give notice requiring the pet to be removed. Further, the body corporate can apply to the Recorder of Titles by application for relief for an order to remove the pet if it is kept contrary to the by-laws. An occupier cannot be forced to remove a guide dog.
The body corporate has appointed a manager. What powers does the manager have?
The manager has only those powers which are given to the manager by the body corporate. This should be detailed in a written agreement between the manager and the body corporate. The manager carries out his functions subject to the direction of the body corporate and/or committee of management.
Can the body corporate or a lot owner be fined for breaches of a by-law?
Yes, under section 96 of the Act if an owner or occupier of a lot or the body corporate fails to comply with a compliance notice the Resource Management and Planning Appeal Tribunal may impose a fine not exceeding 50 penalty units (at the time of writing $5000). Under section 133 the Recorder or the Tribunal may on application impose a penalty for the breach of a by-law if the by-law provides for a fine for a contravention.
Does a lot owner have to apply to become a member of the body corporate?
No. Each owner of a lot automatically becomes a member of the body corporate when the transfer of the strata lot is registered by the Recorder of Titles.
Who must be notified when a meeting of the body corporate is to be held?
The secretary of the body corporate must give at least seven days written notice to each member of the body corporate which sets out the date, time and place of the meeting, the nature of business and any unanimous resolutions to be put to the meeting. Where a lot is owned jointly by two or more persons the notice may be addressed to the co-owners jointly and given or sent to any one of them.
Is a tenant bound by the by-laws?
Yes, section 93 of the Act states that by-laws are binding on any occupier of a lot and their invitees.
Are there any restrictions on the leasing of a lot?
A lot owner is entitled to lease their lot. However, the body corporate may pass a by-law which restricts the term of a lease. A by-law may impose a minimum term (not exceeding six months) for the letting of lots. This means that a body corporate by-law may ban leases for short terms (that is, for terms less than six months) but cannot ban longer term leases (that is, for terms of six months or more).
What recourse is there where a tenant is breaching the by-laws of the body corporate?
The best course of action is to approach the owner of the lot or the tenant to discuss your concerns. If this does not succeed then the body corporate can take actions to enforce the by-laws.
How does a body corporate enforce by-laws?
Section 93 of the Strata Titles Act 1998 binds parties in respect of body corporate by-laws. It states that:
A by-law is binding on -
(a) the body corporate; and
(b) the owner of a lot; and
(c) the occupier of a lot; and
(d) an invitee of the owner or occupier of a lot
There are number of methods available for a body corporate to enforce by-laws. These are:
By issue of compliance notice. Section 95 of the Act enables a body corporate to issue a written notice requiring a person:
in the case of a continuing contravention, to refrain from further contravention; and,
in any case, to take specified action to remedy the contravention within a specified period (which must be at least 30 days) stated in the notice.
Section 96 provides that if a lot owner fails to comply with the compliance notice the body corporate may apply to the Resource Management Planning Appeal Tribunal for enforcement of the by-law. In making its decision the Tribunal may impose a fine not exceeding 50 penalty units (currently $6500.00) and make any other order the Tribunal considers appropriate,
Make an Application for Relief. Instead of or in addition to giving notice for compliance the body corporate may make an Application for Relief to the Recorder of Titles for an order that the offending party comply with or refrain from contravention of the by-law. The Recorder has no power to impose a fine on the party in default unless the penalty is provided for in the by-laws. However, penalties may apply where an order of the Recorder is contravened or not complied with, and
Add penalties to by-laws and apply for imposition of penalties. Amend the body corporate by-law in accordance with section 133 of the Act to provide that a person bound by the by-law pay a penalty to the body corporate for a breach of the by-law. The Recorder can impose a penalty set out in a by-law to a maximum of 20 penalty units (presently $2600) and the Tribunal may impose a penalty to the maximum of 50 penalty units (presently $6500). Note; Any change of by-law must be lodged for registration within three months of the passing of the resolution.
Who is entitled to a copy of the by-laws?
The body corporate must provide a copy of the by-laws in force at the time, if reasonably requested by a lot owner or occupier.
What is a quorum for a body corporate meeting?
Model by-law 10 of the Act provides that a quorum for a meeting of the body corporate is the majority of the members. This quorum applies unless the body corporate's own by-law make other requirements for a quorum.
How does a body corporate correctly levy contributions?
Section 83 of the
Strata Titles Act 1998 sets out the requirements for properly levied contributions.
These can be summarised as:
The contributions are to be levied by resolution at a properly constituted meeting of the body corporate,
Contributions are to be proportioned in accordance with the unit entitlements of each lot in the strata scheme,
The resolution is to set the amount for payment by each lot and state the dates the contributions are to apply,
The resolution is to set the date the contributions are to be due for payment,
The body corporate is to give notice of payment to lot owners setting out the amount due for payment, the due date for payment and the period for which the contributions apply, and
If interest is to be charged on outstanding contributions as provided for in section 84 of the Act that a resolution fixing the rate of interest is passed at a properly constituted meeting of the body corporate.
What action can a body corporate take when contributions are not paid?
Section 113 of the Strata Titles Act empowers the Recorder of Titles to make orders requiring a person to pay any contributions properly levied by the body corporate.
A request for an order is made by an application for relief lodged after the date for payment of contributions has passed.
In many instances applications for an order have to be refused because the contributions have not been properly levied by the body corporate.
In order to assist with successful applications for relief it is recommended that bodies corporate ensure that the matters listed in the previous question above are considered when levying for contributions.