By-laws are essential for regulating a strata scheme. They govern how lots and common property can be used, and help maintain order and fairness among residents. However, to be legally enforceable, a by-law must be carefully drafted and adopted in line with the requirements of the Strata Schemes Management Act 2015 (NSW) (the Act). This article explains the necessary steps to ensure your by-law is valid, enforceable, and compliant with the law.
Define the Scope of the By-law
A valid strata by-law must fall within the boundaries of what the Act permits. By-laws can regulate the use, enjoyment, and control of lots and common property. They may also assign maintenance obligations or grant exclusive use rights to a particular lot owner. Permitted topics include:
- Use of common property (such as parking, gardens, or storage);
- Behaviour of residents and visitors;
- Renovation and building works; and
- Assignment of maintenance responsibilities.
A by-law will be invalid if it is inconsistent with the Act, overrides statutory obligations, or is found to be harsh, unconscionable, or oppressive. There is no requirement to adopt model by-laws, though they can provide a helpful starting point. Customised by-laws are often necessary to reflect the specific needs of a particular strata scheme.
Adoption Procedures
A by-law must be passed by the appropriate resolution. Most new by-laws and amendments require a special resolution, which means at least 75 percent of votes cast at a general meeting must be in favour. The by-law must be:
- Drafted in clear, precise language;
- In the approved form prescribed by the Registrar-General; and
- Registered within six months of being passed.
Failure to meet these requirements may result in the by-law being unenforceable.
Even if a by-law is properly passed, it will not take effect until it is lodged with NSW Land Registry Services. That said, registration does not validate a by-law that is otherwise defective. Amendments to existing by-laws must also be registered within six months. Changes that are not lodged in time have no legal effect until recorded.
When a by-law grants exclusive use of part of the common property or authorises a lot owner to carry out works, it must also specify who is responsible for maintaining the affected area. If the lot owner is to be responsible Their written consent must be obtained; and the by-law must clearly outline their responsibilities. If no responsibility is stated, the default position is that the owners corporation remains responsible for maintenance.
A valid by-law binds the owners corporation, lot owners, occupiers, lessees, and mortgagees. However, to be enforceable, the by-law must not only comply procedurally but also be fair and consistent with legislation. For effective enforcement:
- Use clear and non-ambiguous language;
- Avoid overly broad or punitive provisions; and
- Consider how the by-law will be monitored and enforced in practice.
There are important limitations on the scope of by-laws, which is that they cannot override obligations under the Act and they cannot exceed the authority granted under the Act.
Conclusion
Drafting a legally enforceable by-law requires more than majority support, it demands careful attention to statutory form, permitted content, and registration deadlines. A defective or invalid by-law can cause confusion, disputes, and even litigation within the strata community.
To ensure your by-laws are robust, lawful, and enforceable, consult with a strata law professional who can guide you through the drafting and registration process. Feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube , LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."
