The NSW Civil and Administrative Tribunal Appeal Panel’s (Appeal Panel) recent decision in Feletti v Eales [2019 NSWCATAP 100] (Feletti Case) has highlighted the limitations of enforcing by-laws against tenants in a strata scheme.
The case concerned Ms Feletti, the owner and occupier of a unit in a strata scheme, and Mr Eales, the owner and landlord of the unit above Ms Feletti’s.
The by-laws for the strata scheme included by-laws requiring:
Ms Feletti claimed Mr Eales’ tenants were causing excessive noise in breach of the Disputed By-laws. She sought orders pursuant to sections 232 and 241 of the Strata Schemes Management Act (SSMA) to:
to comply with the Disputed By-laws.
In the first instance, the NSW Civil and Administrative Tribunal (Tribunal) found:
Ms Feletti appealed to the Appeal Panel. The Appeal Panel supported the Tribunal’s findings.
In its decision the Appeal Panel drew attention to the wording of section 135 of the SSMA, which provides that the by-laws for a strata scheme binds “the owners of lots”, but not occupiers.
Accordingly, whilst the Tribunal was empowered to make orders requiring Mr Eales to comply with the Disputed By-laws, its powers did not extend to making orders against Mr Eales’ tenants by virtue of section 135 alone.
Additionally, section 135 did not empower the Tribunal to order Mr Eales to ensure his tenant’s complied with the by-laws as the by-laws did not require a lot owner to enforce a tenant’s compliance with the by-laws of the strata scheme.
The Feletti Case confirms the Tribunal does not have the power to directly regulate the behaviour of a tenant unless there is an explicit enforcement provision in the by-laws for the strata scheme.
If strata schemes wish for the Tribunal to enforce by-laws against tenants then they should ensure that the by-laws adequately provide for this in their drafting.
Authors: Elly Ashley & Yunsi Feng
Vanya Lozzi, Partner
T: +61 2 8083 0462
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Published by Elly Ashley, Yunsi Feng