Western Australian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

STRATA TITLES ACT 1985 - SECT 42

42 .         By-laws

        (1)         A strata company may make by-laws, not inconsistent with this Act, for —

            (a)         its corporate affairs; and

            (b)         any matter specified in Schedule 2A; and

            (c)         other matters relating to the management, control, use and enjoyment of the lots and any common property.

        (2)         The provisions set out in Schedules 1 and 2 shall be deemed to be by-laws of the strata company and may be amended, repealed or added to by the strata company —

            (a)         by resolution without dissent (or unanimous resolution, in the case of a two-lot scheme), in the case of Schedule 1 by-laws; or

            (b)         in accordance with any order of a court or the State Administrative Tribunal or any written law; or

            (c)         in any other case, by special resolution.

        (2a)         Each by-law that is additional to the by-laws in Schedules 1 and 2 or any amendment to a Schedule 1 or Schedule 2 by-law shall be classified in the by-laws as —

            (a)         a Schedule 1 by-law; or

            (b)         a Schedule 2 by-law.

        (2b)         A by-law of the kind described in items 4, 6 and 8 in Schedule 2A is classified as a Schedule 1 by-law and may only be made, amended or repealed by resolution without dissent (or unanimous resolution, in the case of a two-lot scheme) of the strata company; but if such a by-law is included in a management statement under section 5C lodged with a strata/survey-strata plan it shall be deemed to be made in accordance with this subsection.

        (2c)         Despite subsection (2) but without affecting section 49, by-law 11(1) in Schedule 1 is not a by-law of a strata company for a two-lot scheme unless the strata company makes such a by-law.

        (2d)         A by-law made by a strata company at the request of a public authority or a local government may be expressed to require the consent of that authority or local government to an amendment or repeal of the by-law, and any such restriction has effect according to its tenor.

        (3)         No by-law, amendment or repeal of a by-law is capable of operating so as to prohibit or restrict the devolution of lots or any transfer, lease, mortgage or other dealing therewith or to destroy or modify any easement implied or created by this Act.

        (4)         No amendment or repeal of a by-law or additional by-law has effect until —

            (a)         the strata company has, not later than 3 months after the passing of the resolution for the amendment, repeal or additional by-law, lodged a notice of the amendment, repeal or additional by-law in the prescribed form with the Registrar of Titles, including in the case of a by-law made under subsection (8) a description of the area affected; and

            (b)         the Registrar of Titles has made a reference to the amendment, repeal or additional by-law on the appropriate registered strata/survey-strata plan.

        (4a)         If a notice under subsection (4)(a) applies to the amendment or addition of a by-law of the kind described in item 8 of Schedule 2A it must be accompanied by —

            (a)         a certificate given by every person who —

                  (i)         has a registered interest in any lot proposed to be affected; or

                  (ii)         is a caveator in respect of any such lot,

                certifying his consent to the proposed re-subdivision; and

            (b)         a certificate given by every person who has a registered interest in any lot the unit entitlement of which is proposed to be affected certifying his consent to the proposed allocation of unit entitlement set out in the application.

        (5)         A lease of a lot or common property shall be deemed to contain an agreement by the lessee that he will comply with the by-laws in force.

        (6)         Without limiting the operation of any other provision of this Act, the by-laws for the time being in force bind the strata company and the proprietors and any mortgagee in possession (whether by himself or any other person) or occupier or other resident of a lot to the same extent as if the by-laws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident respectively and as if they contained mutual covenants to observe and perform all the provisions of the by-laws.

        (7)         A proprietor or mortgagee in possession of a lot shall take all steps that are reasonable in the circumstances to ensure that every occupier or other resident of that lot complies with the by-laws for the time being in force.

        Penalty: $400.

        (8)         Without limiting the generality of any other provision of this section other than subsection (1), a strata company may, with the consent in writing of the proprietor of a lot, pursuant to a resolution without dissent (or unanimous resolution, in the case of a two-lot scheme) make, under this subsection only and not otherwise, a by-law in respect of that lot conferring on that proprietor the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it upon such terms and conditions (including the proper maintaining and keeping in a state of good and serviceable repair of the common property or that part of the common property, as the case may be, and the payment of money by that proprietor to the strata company) as may be specified in the by-law and may, pursuant to a resolution without dissent (or unanimous resolution, in the case of a two-lot scheme), make a by-law amending or repealing any by-law made under this subsection.

        (9)         After the expiration of the period of 2 years that next succeeds the making, or purported making, of a by-law referred to in subsection (8) (including a by-law so referred to that amends, adds to or repeals another by-law), it shall be conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed.

        (10)         Any by-law referred to in subsection (8) shall, while it remains in force, enure as appurtenant to, and for the benefit of, the lot in respect of which it was made and the proprietor, occupier and (subject to the terms of the by-law) any other resident thereof for the time being.

        (11)         The proprietor for the time being of a lot in respect of which a by-law referred to in subsection (8) is in force —

            (a)         is, subject to section 43(4), liable to pay to the strata company any moneys referred to in the by-law in accordance with the by-law; and

            (b)         is, unless excused by the by-law, responsible for the performance of the duty of the strata company under section 35(1)(c) in respect of the common property, or the part of the common property, to which the by-law relates.

        (12)         Where a person becomes proprietor of a lot at a time when, pursuant to subsection (11)(a) or this subsection, another person is liable to pay money to the strata company, the person who so becomes proprietor is, subject to section 43(4), jointly and severally liable with the other person to pay the money to the strata company.

        (13)         Any moneys payable by a proprietor to the strata company under a by-law referred to in subsection (8) or pursuant to subsection (12) may be recovered, as a debt, by the strata company in a court of competent jurisdiction.

        (14)         Notwithstanding subsection (2), in the case of a scheme in which none of the lots is used or intended to be used for residential purposes, the strata company may, by special resolution, amend by-laws contained in Schedule 1 for the purpose of making special provision that in an election of the members of the council of the strata company the voting rights of the proprietors shall be proportionate to the unit entitlements of their respective lots; and any such special provisions may be further amended or repealed by special resolution of the strata company.

        (15)         To the extent to which a by-law purports to prohibit or restrict —

            (a)         the keeping on a lot of a dog used as a guide by a completely or partially blind proprietor, occupier or other resident of a lot; or

            (b)         the use of a dog as a guide on a lot or common property by a completely or partially blind person,

                the by-law has no force or effect.

        [Section 42 amended: No. 58 of 1995 s. 43, 92, 94, 95 and 96; No. 57 of 1997 s. 115(2); No. 24 of 2000 s. 40(4) to (7); No. 55 of 2004 s. 1156(1).]



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback