Factsheet 13: Strata scheme tenants


PDF Factsheet 13 [PDF]

As a tenant in NSW you have rights under the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2010. If you rent in a strata scheme you are also covered by the Strata Schemes Management Act 1996.

The owners corporation

The owners corporation (once called the ‘body corporate’) is the company of all the individual owners of the flats in a strata title building.

Decisions about the management of the whole building are made by meetings of the owners corporation. The owners corporation will likely contract an agent to deal with day-to-day management.

Owners corporation meetings

Tenants have no legal right to participate in meetings of the owners corporation except with written permission from their landlord.

Consider speaking or writing to those who can vote at these meetings to gain support for things like getting repairs done. You might attend a meeting and speak about a problem you have.

Older strata schemes must have a notice board displaying owners corporation minutes. These are not compulsory for schemes started after 1 July 1997.

Repairs to common property

The owners corporation is required to properly maintain all areas of common property. This includes outside walls, shared laundries, stairwells, foyers, lifts and common parking and garden areas.

Repairs to individual flats are the landlord’s responsibility – see Factsheet 06: Repairs and maintenance.

If a problem is clearly on common property, write to the owners corporation or their management agent and ask for repairs to be done immediately. Send a copy of the letter to your landlord (or their real estate agent). Ask the landlord to take action to make sure the owners corporation does the repairs. Keep copies of all letters.

If the landlord does not chase up the owners corporation to do common-property repairs, you can apply to the NSW Civil and Administrative Tribunal (NCAT) for an order to have the repairs done. In your application you should argue that your landlord’s obligation to do repairs includes getting the owners corporation to do repairs.

By-laws and rules

By-laws are the rules for managing the strata scheme. They are registered with NSW Land & Property Information. The landlord/agent must give you a copy of the owners corporation by-laws within 7 days of moving into the premises. If not, they can be fined $110.

Examples of by-laws are: ‘no pets on the premises’, ‘no access to rooftop after 10pm’, ‘no bicycles to be chained in the stairwell’, ‘all floors to have some form of carpet or floor covering’.

Some owners corporations make ‘house rules’ which they expect all occupants to follow. However, if such rules are not registered as by-laws, they are not lawful.

Under the Strata Schemes Management Act 1996, the owners corporation can serve notices on owners or tenants to comply with a by-law. If the notice to comply is not followed, the owners corporation can apply for an order from the NSW Civil and Administrative Tribunal for a fine of $550 to be paid by the owner or tenant.

Resolving disputes

The Strata Schemes Management Act 1996 sets out a process for resolving disputes between occupants of strata schemes, or between the owners corporation and an occupant.

Step 1: Mediation

If speaking or writing to each other does not resolve the dispute, apply to the NSW Civil and Administrative Tribunal for mediation (this is required under the Act). Get an application for mediation from NSW Fair Trading. Mediation costs $78 ($5 for a full-time student or pensioner).

You can instead use a Community Justice Centre, where mediation is free.

An attempt at mediation is required before a dispute can go to a Strata Schemes Adjudicator.

Step 2: Order from an adjudicator

If mediation fails, you can apply to a Strata Schemes Adjudicator for an order. Adjudicators are members of the NSW Civil and Administrative Tribunal. Applications cost $78.

The adjudicator will make a decision based on the written material in your application. There is no hearing – you will receive a written copy of the decision. Decisions of an adjudicator are binding. The adjudicator can rule on disputes such as:

  • repairs to common-property ceilings, walls and bathrooms
  • water coming through windows and shower floors
  • parking on common property without approval
  • breaches of by-laws
  • alterations to common property
  • use of air conditioners
  • insufficient floor coverings
  • noisy residents.

Step 3: Order by the NSW Civil and Administrative Tribunal

If you are unhappy with the adjudicator’s decision, you have 21 days to appeal to the tribunal. The tribunal can dismiss your appeal if it thinks that the adjudicator made the appropriate order, or it can make a different order. Applications cost $78 ($5 for a full-time student or pensioner).

If an order is not followed, the matter may go back to the tribunal, which can order a person to pay a fine of up to $5,500. The tribunal can also award money to the applicant to cover the legal costs, but will not order compensation for any losses.

If you want compensation, get advice from a Community Legal Centre about going to court.

You can ask the tribunal registrar to waive application fees at any stage of the proceedings, but you will need to show special circumstances.

Keeping pets

Some tenancy agreements have an additional term that says you must have the landlord’s consent before you can keep a pet. In strata schemes, some by-laws state that you also need to have written consent of the owners corporation.

In some circumstances, an adjudicator and/or NCAT can make an order that the owners corporation has unreasonably withheld its approval to keep a pet.

Even if you have the consent of the landlord and the owners corporation, any other occupier can apply for an order to remove a pet on the grounds that it is causing a nuisance.

By-laws cannot prevent you having a guide dog or hearing dog.

For more detailed information, see Keeping pets in strata schemes by NSW Young Lawyers.

No eviction by the owners corporation

The owners corporation cannot evict a tenant – only the NSW Civil and Administrative Tribunal can if it makes a termination order on application by the landlord/agent. The provisions of the Residential Tenancies Act 2010 must be followed when ending a tenancy in a strata scheme.

Further Information and contacts

  • NSW Land & Property Information: phone 1300 052 637, www.lpi.nsw.gov.au
  • NSW Fair Trading website:
    www.fairtrading.nsw.gov.au (under ‘Tenants & home owners’ > ‘Strata schemes’)
  • Mediation Services Unit (NSW Fair Trading): phone 9338 7900 or free call 1800 451 431
  • Community Justice Centres: free call 1800 990 777 or TTY 1800 671 964
  • Community Legal Centres: phone 9212 7333,
    www.clcnsw.org.au

January 2014

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Further help

The information in this factsheet:
• is intended as guide to the law and should not be used as a substitute for legal advice
• applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.
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