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Strata Title Reform- Are You Required to Consolidate Your By-Laws?

WHAT HAS HAPPENED?

There has been significant reform to the Strata Titles Act 1985 (WA) (Act) through the Strata Titles Amendment Bill 2018. The changes took effect on 1 May 2020. 

Some of the important amendments made to the Act include changes to the default by-laws that are automatically adopted upon registration of the scheme if the strata company has not registered its own by-laws. For example, previously the default by-laws prohibited children playing upon common property without adult supervision. This by-law has been deleted as it was deemed to be unfair, discriminatory or oppressive.

Other amendments to the Act include an obligation to consolidate a scheme's unique by-laws (if it has registered its own by-laws or amended the default by-laws) into one document. 

IS THERE A REQUIREMENT TO CONSOLIDATE? 

If a scheme has existing by-laws in place prior to 1 May 2020 and it is not making, amending or repealing a by-law, then there is no obligation to consolidate. 

However, if a scheme wishes to make, amend or repeal a by-law, it must first consolidate its by-laws. The first time the scheme is required to consolidate its by-laws will potentially be an involved and lengthy process.

The consolidation process involves collating all the existing by-laws and compiling them into one document. Then an assessment is undertaken to:

  • Determine whether any by-laws are now invalid (eg there is no power to make the by-law or the by-law is inconsistent with the Act or other law)
  • Reclassify the by-laws into 'governance' or 'conduct' by-laws. Governance by-laws set out how the strata company is run and require a resolution without dissent to introduce, amend or delete this type of by-law. Conduct by-laws set out how people are to behave in the scheme and require a special resolution to introduce, amend or delete this type of by-law
  • Delete or amend and reclassify the default by-laws (if any are applicable to a scheme). 

The consolidated by-laws should then be presented to the strata company (and in some cases tabled for a vote) and then registered with Landgate.

HOW DOES A SCHEME MAKE, AMEND OR REPEAL ITS BY-LAWS? 

If a scheme wishes to make, amend or repeal any by-laws, it will first need to complete the consolidation process (as outlined above). 

Assuming the consolidation process has been completed or is being compiled together with the new, amended or repealed by-law, then the draft new, amended or repealed by-law will need to be:

  • checked to ensure the new, amended or repealed by-law is not invalid
  • classified as either a 'governance' or 'conduct' by-law
  • tabled for a vote by the members of the scheme (noting the above different standard of vote required for 'governance' and 'conduct' by-laws)
  • registered within three months from the closing date of voting.

For further information about the kinds of changes a scheme may have to make, please see a diagram here

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Copyright 2020 K & L GatesNational Law Review, Volume X, Number 239
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About this Author

Michael Hain Real Estate Attorney K&L Gates Perth, Australia
Partner

Michael Hain is an experienced Partner with a demonstrated history of over 25 years in value-adding and delivering solutions for clients in real estate transactions, large scale brown fields and green fields project delivery, property funds transactions, tenure and access issues. The experience has been gained across a diverse range of client and project types including in residential, retail, commercial, agricultural, industrial and resources projects, and is backed with a strong and sound commercial and legal grounding.

Michael Hain believes in providing value-add for clients by...

61.8.9216.0964
Jason Randall Real Estate Attorney K&L Gates Perth, Australia
Senior Associate

Mr. Randall advises clients in relation to all aspects of real estate transactions including:

  • acquisitions and disposals of residential, retail, commercial and agricultural land
  • retail, commercial, industrial and telecommunications leasing
  • distressed real estate, including mortgagee and receiver sales
  • aged care facilities

Primary Practice

  • Real Estate

61.8.9216.0915
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