Understanding By-Laws in Community Titled Properties

What are by-laws, how are they important and how do we change them?

By-laws are seemingly simple rules that serve as the backbone of harmonious community living, and understanding them is crucial for every owner.

In this blog post, we'll delve into what by-laws are under the Community Titles Act 1996 (SA), how they operate within your community, and the process for changing them.

What are By-Laws Under the Community Titles Act 1996?

Simply put, by-laws are a set of rules that govern the use and enjoyment of the community property and the lots within a community scheme. They are legally binding on all owners and occupiers within that community, including visitors.

Think of them as the community's constitution. While the Community Titles Act 1996 provides the overarching legal framework, by-laws provide the specific, tailored rules for your particular community. 

They cover a wide range of aspects, from the mundane to the critical, such as:

• Use of common property: This includes rules about parking, rubbish disposal, landscaping, swimming pools, gyms, and other shared facilities.

• Appearance of lots: By-laws might dictate what you can and cannot do to the exterior of your property, such as installing air conditioners, satellite dishes, or even the colour of your front door.

• Noise and behaviour: Rules around quiet hours, pets, and general conduct to ensure peaceful enjoyment for all residents.

• Repairs and maintenance responsibilities: Clearly outlining who is responsible for what – the community corporation or individual lot owners.

• Levies and financial matters: While the Act sets out the framework, by-laws might detail specific payment schedules or processes.

Every community corporation, upon registration, has a set of by-laws. These are drafted by lawyers or conveyancers and accepted by the developer of the new community.  For off-the-plan developments, purchasers will often receive a draft version of these and then toward the completion of the project the developer will lodge the final version with the Lands Titles Office; the manager assisting with the First Statutory General Meeting will explain owners’ rights and obligations under these by-laws which are different for every property..

How Do By-Laws Work?

By-laws work by establishing a clear framework for behaviour and responsibilities within the community. They are designed to:

1. Promote harmonious living: By setting expectations and guidelines, by-laws minimise disputes and promote a sense of community.

2. Protect common property: They ensure the proper use, maintenance, and preservation of shared assets.

3. Maintain property values: Well-enforced by-laws contribute to a tidy, well-managed community, which can positively impact property values.

4. Provide a mechanism for enforcement: If a by-law is breached, the community corporation has a clear process to address the issue, which can include issuing warnings, fines, or even pursuing legal action through the Magistrates Court.

All owners, and anyone occupying a lot (e.g., tenants), are deemed to have notice of the by-laws and are bound by them. It's crucial for new owners to obtain a copy of the by-laws and familiarise themselves with them. 

As a strata manager, I always recommend this as one of the first steps when purchasing a community titled property and always recommend that the property manager attach these to a lease to ensure that tenants are informed.

How to Change By-Laws

By-laws are not set in stone; they can be changed to adapt to the evolving needs of the community. However, the process requires careful adherence to the requirements of the Community Titles Act 1996 to ensure the changes are legally valid.

Here's a general overview of the process:

1. Identify the Need for Change: The first step is to recognise that an existing by-law is no longer fit for purpose, or a new by-law is required to address a specific issue. This often comes from discussions among owners, or recommendations from the strata manager.

2. Drafting the Proposed By-Law: This is a critical step. The new or amended by-law must be clear, concise, enforceable, and not contravene the Community Titles Act 1996 or any other relevant legislation. It's highly recommended to seek legal advice from a lawyer specialising in strata law at this stage. A poorly drafted by-law can lead to future disputes and be difficult to enforce.

3. Circulate the Proposal: The proposed by-law change must be circulated to all lot owners well in advance of a general meeting. The notice must clearly state the proposed changes and the reasons for them.

4. Hold a General Meeting: The proposed by-law change must be voted on at a general meeting of the community corporation (either an Annual General Meeting or an Extraordinary General Meeting).

5. Pass a Special Resolution: This is the most crucial requirement for changing by-laws. To pass a by-law change, a special resolution is required. This means:

   • At least 14 days' written notice of the resolution must be given to all owners.

   • The motion must be passed by at least 75% of the votes cast by those present and eligible to vote at the meeting (either in person, by proxy, or by postal vote).

   • The number of votes against the resolution must not exceed 25% of the total number of community lots.

6. Note: There are specific rules regarding voting entitlements and proxies, so it's essential to consult the Act or your strata manager for accurate guidance.

7. Lodge the By-Law with the Registrar-General: Once a special resolution is passed, the new or amended by-law is not legally effective until it is lodged with the Registrar-General and recorded on the Certificate of Title for the community scheme. This involves submitting the correct forms and fees to the Land Titles Office. Your strata manager or legal representative will typically handle this on behalf of the community corporation.

The Importance of Professional Guidance

While this guide provides a general overview, navigating the intricacies of by-laws under the Community Titles Act 1996 can be complex. As a strata manager, I cannot stress enough the importance of seeking professional advice.

• For drafting new by-laws: Always consult with a legal professional specializing in strata law to ensure the by-laws are legally sound and enforceable.

• For the amendment process: Your strata manager can guide you through the meeting procedures, voting requirements, and the necessary documentation for lodgement.

By understanding your community's by-laws and following the correct procedures for their amendment, you contribute to a well-managed and harmonious living environment for everyone. If you have any questions about your community's by-laws, don't hesitate to reach out to your strata manager.

The goal of the by-laws is to provide a framework for harmonious Community living