Five common myths about strata property by-laws

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5 common strata property by-law myths — busted

We debunk common strata property by-law myths to help you understand what you can and can’t do in community living settings

If you’re living in a strata property, by-laws or building rules serve as a guide and protect you and your neighbours. However, it’s sometimes difficult to differentiate between strata property by-law myths and facts.

To help you understand what you can and can’t do in a community living setting, we’ve compiled a list of the most common myths about strata property by-laws and building rules.

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1. Myth: Smoking on balconies is banned

The truth about this particular strata property by-law myth is a little tricky to determine. People often ask questions about whether smoking is permitted on the balconies of strata apartments. Your balcony is your own property. However, while everybody has a right to enjoy their property in their own way, smoke can drift into other windows, vents and balconies.

In New South Wales, strata legislation clarifies smoking may cause nuisance or hazard to another person. A model by-law is included in schedule 3 that regulates smoke drift and explains that an owner or occupier of a lot must ensure smoke does not drift to the common property or another lot – including the air space of other balconies. There are two model by-law options that can be adopted. Check your property’s by-laws to learn if your owners corporation has chosen to adopt one of these options.

In Queensland and Victoria, there is no specific legislation that bans smoking on balconies. It is left to the body corporate or owner corporation to adopt a by-law or building rule relating to smoking at a general meeting if supported by a special resolution.

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2. Myth: Pets are not allowed in strata properties

We are happy to confirm that this particular strata property by-law myth is just that — a myth. However, those who have pets in community living settings will need to obtain written approval from the owners corporation, and also ensure they abide by related by-laws.

While your state strata laws may be relaxed regarding pet ownership, your by-laws or building rules will likely require you to make sure the animal is fit for domestic housing and common property is not damaged or compromised by your pet.

In New South Wales, a legislation update has made it easier for those living in strata settings to keep pets, depending on a few conditions.  In Queensland and Victoria, by-laws or building rules govern pet ownership in community living settings.

As a pet owner, it’s wise to have your pets fully vaccinated and trained so that they don’t pose a threat to other residents in the strata property.

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3. Myth: Strata property owners can’t be Airbnb hosts

While this strata property by-law myth is generally false, it’s important to understand that in some cases, strata properties may be able to enact by-laws that govern or restrict short-term letting in some instances.

If you’re a short-term letting host, make sure your guests are compliant with the rules of maintaining common property and do not create a nuisance for your neighbours during their stay.

New South Wales state laws are quite strict when it comes to short-term letting. As of 10 April 2020, through changes to the Fair Trading Act 1987 and Strata Schemes Management Act 2015, NSW strata properties can prohibit short-term letting. Those who are allowed to engage in short-term letting must follow a Mandatory Code of Conduct.

If a strata property’s owners corporation wants to restrict short-term letting, they will need to adopt a new by-law to ban the practice. To successfully do this, owners corporations will need to vote via special resolution and have a 75 per cent majority support. From here, the new by-law will need to be registered with NSW Land Registry Services.

In Queensland and Victoria, on the other hand, body corporates and owners corporations cannot ban short-term letting.

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If you’re okay with your tenants being an Airbnb host in your building, make sure to give them a copy of the by-laws and building rules within two weeks of their moving in. This will ensure that the by-laws or building rules are clearly communicated as part of the tenancy agreement to avoid disputes and hassles in the long run.

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4. Myth: Owners can host noisy parties whenever they like, as long as they are indoors

Those living in a strata scheme must act in a way that does not negatively affect their neighbours’ quality of life, so this strata property by-law myth isn’t true. If your party is affecting your neighbour’s right to a peaceful life on their own property, you are breaking your by-laws or building rules. Remember also to be considerate of your neighbours if they complain of noise, barbecue or cigarette smoke getting into their property from yours.

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5. Myth: By-laws cannot be changed

This strata property by-law myth is definitely false. Strata by-laws are a set of mutually agreed-upon building rules for a hassle-free co-existence of all owners. So, if they’re not helping maintain decorum, or if they’re incomplete, ambiguous or outdated, they can be updated to suit your strata community’s changing needs.

Keep in mind, strata by-laws or building rules that go against state legislation, or are oppressive or unreasonable, can be invalidated by an adjudicator.

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In New South Wales

In New South Wales, by-laws can be changed by owners corporation approval at an annual general meeting (AGM) or an extraordinary general meeting if supported by a special resolution. Owners can put forth a motion with a proposed new by-law on the agenda of the meeting. Your strata committee must make sure to get the newly drafted by-laws registered with the NSW Office of the Registrar General within six months from the date of the general meeting during which they were approved.

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In Queensland

Queensland body corporates may change their 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 must be registered with the Titles Registry Office within three months of passing the motion to change the by-laws.

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In Victoria

In Victoria, owners may propose new building rules to be adopted in a special resolution and secure at least 75 per cent of votes in favour of the new rules. They can be approved after your owners corporation lodges a copy of the consolidated building rules with Land Use Victoria.

If you’d like to find out more on drafting by-laws or building rules for your strata property,  click here to download our FREE Community Living guide on by-laws and rules.  For a consultation to review your current by-laws with the Kemp Peterson team, click here.  Alternatively, click here for a free assessment to find out more about the services we offer.

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