STR-07 Scheme By-Laws
Version 6 – 01/05/2020
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This guide is produced by the Western Australian Land Information Authority (Landgate) to provide the community with a basic understanding of strata titling principles. It is a general information source only, it is not legal advice and should not be taken as legal advice on strata titles. You should refer to the legislation available on the WA government legislation website www.legislation.wa.gov.au
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Previously the by-laws in Schedules 1 and 2 of the Strata Titles Act 1985 (STA) (standard by-laws) were automatically adopted upon registration of the scheme, unless by-laws were lodged in the form of a Management Statement (Form 25) lodged with the Application to register the plan. They could then be added to, amended or repealed by lodgement of a Form 21 under the Strata Titles General Regulations 1996. The purpose of a management statement was to establish the by-laws and to provide developers with a method of registering matters relating to the development of a strata/survey-strata scheme in stages at the time the scheme was being established.
The amended STA replaces that process by introducing the lodgement of the Scheme By-Laws which is one of the Scheme Documents. If a Scheme By-Laws document is not lodged with the Application to register the strata titles scheme, then the governance by-laws in Schedule 1 and conduct by-laws in Schedule 2 are automatically adopted. If any amendments to those by-laws are required, then a Scheme By-laws document will need to be lodged. The Scheme By-laws must always contain a consolidated set of by-laws.
A strata company with by-laws registered prior to commencement day (1/5/2020) may also wish to lodge a consolidated set of by-laws prior to registration of any amendments to those existing registered by-laws.
The forms to use are:
- Scheme By-laws – First Consolidation.
- Scheme By-laws – New Scheme.
- Scheme By-laws – Application to Amend.
Scheme by-laws set out:
- Governance by-laws – including those in Schedule 1
- Conduct by-laws – including those in Schedule 2
A strata company may make governance by-laws and conduct by-laws as defined in section 3(1) of the STA.
Before Commencement Day - By-laws in force before commencement day (01/05/2020) continue in force, where they are not inconsistent with the Act. When the strata company lodged a new by-law or an amendment or repeal of a by-law or the strata company chooses to lodge a consolidated set of by-laws, it will be up to the strata company to determine whether they are Governance or Conduct by-laws.
After Commencement Day - The by-laws as set out in Schedules 1 and 2 of the STA are taken to be the by-laws of a scheme registered after commencement day unless other scheme by-laws are registered for the scheme. They are known as Governance and Conduct by-laws.
By-laws may be amended, repealed or added to:
- by a resolution without dissent (or unanimous resolution in the case of a two-lot scheme) for Governance by-laws;
- by a special resolution, for Conduct by-laws; or
- in accordance with any order of a court, referee or any written law.
A by-law can be made by a strata company at the request of the Local Government or a public authority and may be expressed to require their consent to an amendment or repeal of the by-law. No by-law, amendment or repeal of a by-law may operate so as to restrict the dealing with any lot by a proprietor or modify or destroy any easement implied under the STA as amended.
Note: Resolution without dissent, special resolution and unanimous resolution have the meanings in section 123 of the STA.
2 Lodgement and Registration
Scheme By-laws can be lodged simultaneously with the Application to register strata titles scheme (if indicated on the scheme plan) or any time after registration of the scheme. After 01/05/2020,Scheme By-laws must contain a consolidated set of all by-laws in the approved form. They must be either signed by the:
- registered proprietor(s) of the parcel for a new scheme; or
- the strata company for an existing registered scheme.
Written consents are only required when making, amending or repealing staged subdivision, exclusive use or leasehold by-laws, as set out in items 3, 4 and 5 of this guide.
2.1 Scheme By-laws - schemes registered before 01/05/2020
Scheme By-laws – First Consolidation this form is to be used for schemes registered before 01/05/202 that have existing by-laws who choose to consolidate and/or need to lodge amendments. As consolidating the by-laws could be a lengthy process, a guide has been produced to assist with the process (see Guide to consolidating by-laws).
If you are lodging this form to register amendments to the existing by-laws, these must be registered within 3 months of the by-law being made. The 3 months commence from the closing date of the voting period on the resolution.
2.2 Scheme By-laws - new schemes registered from 01/05/2020
Scheme By-laws – New Scheme - this form is to be used at the time of registration of a new scheme on or after 01/05/2020, where the scheme by-laws differ to the governance and conduct by-laws in Schedules 1 and 2 respectively of the STA. It must contain the consolidated set. It replaces the old Form 25.
2.3 Scheme By-laws - amendments to consolidated by-laws registered from 01/05/2020
Scheme By-laws – Application to Amend - this form is to be used for registered schemes that already have registered consolidated by-laws and are now applying to register new by-laws or amendments or repeals. It replaces the old Form 21.
New by-laws, amendments and repeals must be registered within 3 months of being made, amended or repealed. The 3 months commence from the closing date of the voting period on the resolution.
Note: A Form 21 may be lodged for registration after 01/05/2020 in respect of a new, amended or repealed by-law pursuant to a resolution passed before 01/05/2020, provided it is lodged within 3 months of the closing date of the voting period on the resolution.
3 Staged Subdivision By-laws
Section 42 sets out the requirements for Staged subdivision by-laws. Staged subdivision by-laws can only be made, amended or repealed if the following consents have been provided:
Approved form Proposed Schedule of Unit Entitlements - Staged subdivision by-laws is to be used when preparing staged subdivision by-laws.
4 Exclusive Use By-laws
Section 43 of the STA allows the strata company, by a resolution without dissent (or unanimous resolution in the case of a two-lot scheme), to create a by-law to grant exclusive use and enjoyment of, or special privileges to a lot owner for all or part of the common property. These by-laws can only be made, amended or repealed if the owner of each lot granted exclusive use has given written consent to the by-law(s).
By-laws for exclusive use or special privilege may contain conditions such as the requirements for maintenance and repair.
When only a portion of the common property is subject to exclusive use or special privilege, it must be clearly defined by a sketch that contains sufficient information to accurately plot the affected land. The sketch must be approved by a Plans Senior Consultant at Landgate. Sketches may be forwarded in PDF format to Plans.Consultants@landgate.wa.gov.au for pre-approval.
Note: The areas of exclusive use or special privilege may be described in a narrative form provided they can be plotted in reference to the lot boundaries. In this circumstance, a sketch is not required. The granting of exclusive use or special privilege is not binding until they are registered as by-laws at Landgate. Registration is affected in the same manner as for lodgement of Scheme by-laws outlined above.
5 Leasehold By-laws
Section 40 STA now provides for creation of Leasehold by-laws.
They refer to by-laws for the postponement of the expiry day of a leasehold scheme or for compensation to be payable on the expiry of a leasehold scheme.
The Western Australian Planning Commission needs to consent to leasehold by-laws that postpone the expiry day of the scheme.
5.1 Section 41 STA - postponement of expiry day
The expiry day may only be postponed if the leasehold by-laws provide for it.
To register this postponement an Amendment of Scheme Notice must be lodged supported by the following document:
6 Searching Scheme By-laws
A search of the registered scheme plan will indicate the Scheme By-laws document number on the Record of Strata Titles Scheme (for plans registered prior to commencement, this will be the Form 8) which can then be searched as a separate document. A Scheme By-laws document lodged after 01/05/2020 (other than Form 21), will contain the consolidated set therefore it may not be necessary to get copies of all previously registered by-law documents.