In this podcast, Strata Lawyer David Sachs discusses all you need to know about a Notice to Comply in the context of strata matters.
TRANSCRIPT
Dan
When disputes arise in a strata scheme, namely a breach of a bylaw by a resident. How can owners corporations enforce the bylaw? Well, to find out, I’m with David Sachs of Sachs Gerace Lawyers. David, where do owner’s corporations start in this respect?
David
Look, the one of the things that came in with the new strata legislation was a very streamlined process for an owner’one-pages corporation to issue what’s called a notice to comply, which is a one-page form that identifies where a bylaw has been breached and how it’s been breached and what needs to be done to remedy it. And then that document gets sent to the offending owner or occupant, including a tenant, and then they’re required to do something about their breach within the time specified in the notice to comply.
Dan
So how can one of these be issued?
David
Dan, there’s a particular form that needs to be used so it can’t be viewed as just a letter and you can’t create your own form. You have to use the specific form. All of the details that are in it need to be completed and they need to be completed accurately. Of course, like any legal document, there needs to be a resolution to issue the notice to comply, and that resolution needs to be made either by the corporation in a general meeting.
It can be also made by the strata committee at a properly convened strata committee meeting. And if the power to issue a notice has been delegated to the strata managing agent, it can be issued by the strata managing agent. All that is required as a precursor to making one of those resolutions is that the decision-making body, whether it’s the owner’s corp or the strata committee or the strata managing agent, is that they’re satisfied that there’s been a breach of the bylaw.
And one of the things that have been introduced in the new legislation is that an owner’s corporation or a committee or a strata manager can resolve to issue notices to comply for types of breaches, not only for specific breaches. So, for example, if there is a prevalent problem within an owner’s corp of people parking on common property, then they can resolve to issue notices to comply to any person who parks on the common property. And then from there on, notices can be issued without having to have a meeting to consider whether, you know, John Smith parked on the common property on this particular day.
So long as someone is satisfied that occurred, then a notice to comply can be issued.
Dan
So conversely, David, what happens if somebody receives one of these notices to comply? What they are? What should their actions be?
David
Well, this is something I’m frequently being asked to advise people who have received notices to comply. When you’re looking at it from the owner’s point of view, you need to understand that what’s being done is a precursor to, if you like, a criminal type of prosecution. Because one thing that I haven’t mentioned is that if somebody does not comply with a notice to comply, then the owner’s corporation can commence proceedings in the Civil and Administrative Tribunal and the tribunal can impose a fine.
So that means that it is a punitive process, there’s a need to look very carefully at the way the form has been prepared and the manner in which it has been issued. And can I say in probably the 10 or so notices to comply that I’ve looked at over the last few months, there would only be one or two of them that actually hold water, that all of the others have had deficiencies of one type or another?
And that’s usually because the owner’s corporation has not adopted enough care in the way in which they’ve prepared it. The owner’s failure to comply with some of the formal requirements, like attaching necessary documents that need to be attached, or more particularly, they often engage in argument or overreach in the way in which they describe how the breach was perpetrated and what needs to be done to rectify it. There is a considerable body of law in the criminal law jurisdiction that deals with the way in which charges are to be prepared and they’re issued.
And my view is that those that the law surrounding that applies in the same way to notice is to comply. So in the eight out of 10 examples where I found deficiencies in it, they’re usually because the owner’s corporation is asking a lot of owners to do something that the owner’s corporation doesn’t have the power to require or direct.
If somebody cares about those things, it’s important that these things be issued properly. And it’s equally important for lot owners that they not be subjected to the oppressive issue of these notices and the potential consequences in the tribunal of being fined.
Dan
So one thing that we didn’t talk about, David, was is there a time frame? So if somebody does receive one of these notices to comply, have they got a set period that they need to respond.
David
Well, it would be set out in the notice when somebody is required to comply with what the notice says that they’re required to do. So that needs to be a reasonable time. And what’s reasonable will depend upon what it is they’ve done. For example, if someone is simply parking on the common property, then it would be reasonable that their response to that is immediate. If somebody has installed an unauthorized addition to their property like an awning over the front door or something like that, then a reasonable time would be how long it would take to have someone to a proper builder to come out and get the work done and reinstate the common property.
So it sort of depends. But you do have to comply within a reasonable time if you need to respond. The responding way of dealing with it doesn’t really have any timeframe at all. Generally, the approach is to critique the notice, to comply and to, if you like, warn the owner’s corporation that it should withdraw the notice and should not take any action about it. The threat of the lot owner defending the case and asking the tribunal to order the owners corporation to pay its costs.
A lot of times when you start these processes, that’s akin to grabbing a tiger by the tail and you need to be aware that there might be consequences of issuing a notice. And one of those consequences might be that somebody takes objection to what it is that you’ve done and that you will be responsible for those consequences.
And all it does is illustrate why these things need to be done carefully, needs to be done in accordance with the act, and that there needs to be a proper approach to a description of the breach and the work that the owner or occupant is required to do to carry out to comply with the notice. Otherwise, you may find yourself on the receiving end of an adverse decision in the tribunal, including a costs order.
Dan
So regardless, really, if you’re an owner’s corporation or you are in fact an owner or an occupant, you should be seeking legal advice about this, shouldn’t you? I mean, given the fact that you’ve your own experience tells a story that a lot of these notices to comply had been defective or deficient.
David
Definitely, it would be very unwise, unless it is in a routine case where an owner’s corporation has considerable experience in issuing a notice to comply of a particular type. For example, parking on common property, it’s often a problem and it’s often an issue where these notices are issued. It’s always wise to get some legal advice to check out to make sure that the notice is right.
But if there’s any objection to it, then it’s better not confronting people head-on because these things are often emotional and difficult and relationships have already broken down and can make things worse. It’s always better than to deal with it through a lawyer or on the basis of some legal advice so that you can be on a sure footing and that the arguments actually are relevant to the way in which the legislation works.
Dan
How can Sachs Gerace help in this respect?
David
Well, we deal with these things all the time for owners, corporations who want to issue notices or lot owners who want to ask owners, corporations to issue notices to other lot owners or lot owners who have received them. We have a high degree of skill in this area. That’s coupled with our considerable experience with dealing with regulatory matters for local councils. We are ideally placed to comment on and advise about this particular type of work because we’ve been doing stuff.
We’ve been doing this stuff for a whole lot of regulatory instrumentalities for the best part of 20 years.
