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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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Various factors beyond the control of Landgate can affect the quality or accuracy of the information and products. While every effort has been made to ensure accuracy and completeness, no guarantee is given nor responsibility taken by Landgate for errors or omissions in the guide. Landgate does not accept any liability for any loss or damage incurred as a result of the use of, or reliance upon the information provided in this guide or incorporated into it by reference.
1. General
Previously the by-laws in Schedules 1 and 2 of the Strata Titles Act 1985 (STA) (default 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 They could then be added to, amended or repealed by lodgement of a Form 21 under the Strata Titles General Regulations 1996.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.
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 STA. When the strata company lodges 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, the State Administrative Tribunal or any written law.
No by-law, amendment or repeal of a by-law may operate so as to restrict the dealing with any lot or modify or discharge an easement or restrictive covenant.
There is now only one Scheme By-laws form which provides for 3 options:
- Option 1 – Voluntary Consolidation
- Option 2 – New Scheme
- Option 3 – Application to Amend
Those options will be outlined below.
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 sections 3.1, 3.3 and 3.4 of this guide. Scheme by-laws made at the request of the Western Australian Planning Commission or Local Government (by-law under planning condition), only require written consent by the Western Australian Planning Commission or Local Government when amending or repealing those by-laws, as set out in section 3.2 of this guide.
Where the scheme plan incorrectly indicates that Scheme By-laws are to be lodged when applying to register the scheme or scheme amendment, the surveyor will be required to lodge a replacement plan to amend it to indicate “NO”.
2.1 Option 1 – Voluntary Consolidation
This option is to be selected for schemes registered before 01/05/2020 that choose to consolidate. Section 6 of this guide sets out how to consolidate the scheme by-laws of those schemes for the first time.
2.2 Option 2 – New Scheme
This option is to be selected at the time of registration of a new scheme, 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 Option 3 – Application to Amend
This option is to be selected for registered schemes that 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 after the voting period on the resolution has closed. See section 4 of this guide for further details.
3. Types of by-laws
3.1 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:
- Consent of the Owner of a Leasehold Scheme;
- after giving notice in the approved form of Notice to the Owner of the Leasehold Scheme and Designated Interest Holders for making / amendment / repeal of staged subdivision by-laws.
- Consent Statement - Designated Interest Holders for making / amendment / repeal of staged subdivision by-laws;
- after giving notice in the approved form of Notice to the Owner of the Leasehold Scheme and Designated Interest Holders for making / amendment / repeal of staged subdivision by-laws.
The approved form Proposed Schedule of Unit Entitlements - Staged subdivision by-laws eform is to be used when preparing staged subdivision by-laws. Refer to Form Completion Guide for assistance. Paper forms are still available if required.
Regulation 53 sets out the requirements relating to staged subdivision by-laws, including the wording to be used in the warning statement that must be contained in those by-laws (at Regulation 53(9)).
3.2 By-law under planning (scheme by-laws) condition
A by-law made at the request of the Western Australian Planning Commission (WAPC) or local government may be expressed to require the consent of the Western Australian Planning Commission or local government to an amendment or repeal of the by-law.
Application to local government for approval to the amendment or repeal can be made under section 22 of the STA using the approved form Application for approval under planning (scheme by-laws) condition.
Application to WAPC for approval to the amendment or repeal can be made by contacting them directly, and referencing section 22 of the STA.
The amendment or repeal of such by-law can only be registered if the written consent from the Western Australian Planning Commission or local government, as relevant, is provided.
3.3 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 over all or part of the common property (special common property) to the occupiers of a specified lot or lots in the scheme (special lots). These by-laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot 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 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 the by-law creating the exclusive use or special privilege is registered at Landgate.
The making, amendment or repeal of such by-law can only be registered with the written consent of the owner of each lot that is or is proposed to be a special lot.
3.4 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 following consents will be required:
- The Western Australian Planning Commission needs to approve a leasehold by-law that makes/amends/repeals a by-law that postpones the expiry day of the scheme.
- Consent of the Owner of a Leasehold Scheme.
3.4.1 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 a Certificate of Strata Company - Leasehold Expiry Postponement.
3.5 Financial year for a strata company
Section 3(1) of the STA defines the financial year for a strata company as:
“(a) if the scheme by laws are silent on the matter, the period of 12 months ending on 30 June; or
(b) if the scheme by laws specify a period of 12 months ending on a different date as the financial year for the scheme, the period specified in the by laws”
However, this definition does not apply until the end of the 5-year transitional period. Regulation 172 of the Strata Titles (General) Regulations 2019 (ST(G)R) defines the 5-year transitional period to mean the period starting on the commencement day (1 May 2020) and ending on the day that is 5 years after the commencement day.
If the strata company’s financial year is specified in the scheme by-laws and is a period ending on a different date to 30 June, then that strata company doesn’t need to do anything. The financial year specified in the scheme by-laws is the financial year for the strata company.
If the strata company’s by-laws are silent on the period of a financial year, that strata company may operate during the 5-year transitional period on the basis that:
- if the strata company was established before 1 May 2020 and used a period of 12 months as its financial year before the commencement day its financial year is taken to be that period; or
- if the strata company was established before 1 May 2020 and did not use a 12 month period as its financial year before 1 May 2020 or is a strata company established on or after 1 May 2020, its financial year is taken to be the period of 12 months ending on the day before the anniversary of registration of the scheme or 12 months ending on 30 June, whichever the strata company chooses.
During the 5-year transitional period (but not afterwards), a strata company whose scheme by-laws do not specify a period for the financial year and which uses or chooses to use a period of 12 months for its financial year that does not end on 30 June, may take advantage of a transitional regulation to create a by-law in respect of that period by ordinary resolution.
To register such a by-law during this transitional period, insert the new governance by-law in the space provided in Part 3 of the form (under the ordinary resolution clause).
After the 5-year transitional period, the creation of a by-law in respect of the strata company’s financial year will require a resolution without dissent (being a governance by-law).
4. Requirements under section 48 STA for registration of amendment to give effect to scheme by-laws – 3-month time limit
New by-laws, amendments and repeals must be registered within 3 months, after the closing date of the voting period on the resolution. (Note: Section 48(1) of the STA is to be read in conjunction with section 61(1)(c) of the Interpretation Act 1984.)
For example:
- Where the closing date is 14 February, the last date for lodgement will be the 14 May.
- Where the closing date is 30 November, the last date for lodgement will be the 28 February (or 29 February in a leap year).
The voting period is set out in section 121 of the STA.
5. 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 or Schedule of Dealings/Encumbrances) which can then be searched as a separate document. For Scheme by-laws registered prior to 01/05/2020, they may be endorsed as “Management Statement” or “Notification of Change of By-laws”.
A Scheme By-laws document lodged after 01/05/2020 (other than Form 21 which was subject to the transitional period), will contain the consolidated set therefore it may not be necessary to get copies of all previously registered by-law documents.
6. Consolidation of by-laws
6.1 The purpose of this section in the guide
As a result of the amendments to the Strata Titles Act 1985 made by the Strata Titles Amendment Act 2018 Landgate has created this section of the guide to assist the Western Australian strata community to understand the key changes to by-laws. The “Guide to consolidating by-laws” which was published in May 2020 has been withdrawn from publication.
The strata reforms concerning by-laws generally aim to:
- support the proper management of schemes
- minimise disputes and
- make living in strata fairer.
For the purposes of this section, the below terms have the following meanings:
Consolidated set of by-laws: the creation of one document to include all current by-laws for the scheme in the one place, classified appropriately as governance or conduct by-laws.
Scheme: a strata scheme or survey-strata scheme
STA: Strata Titles Act 1985
STGR: Strata Titles (General) Regulations 2019
This section explains how to consolidate the scheme’s by-laws, when a scheme must consolidate its by-laws and when it can choose to do so.
6.2 By-laws – why consolidate?
The strata reforms include a provision in the STGR (regulation 56(2)) that whenever a scheme makes a new by-law, amends a by-law, or repeals a by-law, an application to the Registrar of Titles for an amendment of the scheme to give effect to the change in the by-laws must be accompanied by:
- in the case of a new by-law, specification of the by-law as governance or conduct, as the case requires and
- a consolidated set of all the current by-laws for the scheme.
If a scheme has an easily accessible consolidated set of by-laws it is much easier for everyone in the scheme to know and live by the rules that apply to them, for the strata company (through its strata council and /or strata manager) to manage the scheme and if necessary to take steps to enforce by-laws against parties breaching the by-laws.
6.3 By-laws – what you need to know
By-laws are the rules that everyone in the scheme is bound by and must follow. This includes each lot owner individually, all tenants in the scheme, and the strata company itself, which is a body corporate whose members are all the owners of lots in the scheme.
Strata companies can make new by-laws, amend by-laws and repeal by-laws by passing the relevant resolution and applying to the Registrar of Titles for registration of the change to the by-laws within 3 months after making the change. Changes to the by-laws are ineffective unless registered within the 3-month period.
It is the strata company’s duty to enforce the by-laws. The STA sets out an enforcement process for by-laws commencing with a written notice from the strata company to the person alleged to have breached the by-laws or, in specified circumstances, an application to the State Administrative Tribunal (Tribunal). The Tribunal can make orders for a person to stop breaching a by-law or to fix the breach and since 1 May 2020 the Tribunal may order a person to pay a penalty of up to $2000 for the breach.
6.4 Finding the by-laws that apply to your scheme
General
The first step towards a consolidated set of by-laws is to identify the current by-laws for the scheme.
One of the strata reforms is that a strata company is required to keep a copy of the current scheme documents for the scheme (STA section 104(1)(a)(i)). This includes the scheme by-laws. A lot owner, buyer of a lot in the scheme, mortgagee of a lot in the scheme, and other persons prescribed in the STGR may apply in writing to the strata company to inspect the scheme by-laws.
It is prudent to check for any by-laws that have been registered at Landgate. By-laws kept by the strata company may not have been registered within 3 months after being made, with the result that they are ineffective.
An application can be made to Landgate to inspect the scheme plan because a document called variously Form 8, Schedule of Dealings/Encumbrances or (most recently) Record of Strata Titles Scheme (together called Record) filed at the back of the scheme plan is the document where the Registrar of Titles registers by-law documents lodged for registration by the scheme. There may be a series of by-law documents registered on the Record for a scheme, reflecting new by-laws, amendments and repeals of by-laws. Changes to a scheme’s by-laws are not registered currently on the certificates of title for lots in the scheme.
Scheme established on or after 1 May 2020
If a scheme is established on or after 1 May 2020 the governance by-laws in Schedule 1 of the STA and conduct by-laws in Schedule 2 of the STA (together called default by-laws) are taken to be registered for the scheme unless a scheme by-laws document containing by-laws different to the default by laws is registered by endorsement on the Record. The Record may also record changes to the scheme’s by-laws since the scheme was established.
The default by-laws can be viewed by searching the current STA on the WA government legislation website at www.legislation.wa.gov.au. If a scheme by-laws document is lodged for registration with the other scheme documents to establish the scheme, the document number and description of that document as scheme by-laws together with the registration date will be endorsed on the Record. You will be able to apply for a search of that document to obtain the consolidated set of by-laws. Each change of by-laws document for a scheme registered on the Record since 1 May 2020 will incorporate a consolidated set of by-laws.
Scheme established pre-1 May 2020
Establishing the current by-laws for a scheme established before 1 May 2020 may be a more complex task. Pre-1 May 2020 there was no obligation on a strata company to keep a copy of the scheme’s current by-laws or lodge a consolidated set of by-laws with any by-law change document lodged for registration at Landgate. Strata companies were required to keep copies of unanimous resolutions, resolutions without dissent, and special resolutions so they should have records of by-laws that were made. Strata companies also had to apply to the Registrar of Titles for registration of changes to the by-laws within 3 months after making the change for the change to be effective.
Many schemes may be operating only with the by-laws in Schedule 1 and 2 of the STA that were in force immediately prior to 1 May 2020. In this case there will be no records endorsed on the Record for the scheme at Landgate. You can search for the Schedule 1 and 2 by-laws that were in force immediately prior to 1 May 2020 on the WA government legislation website at www.legislation.wa.gov.au.
Other schemes may be operating with a combination of the Schedule 1 and 2 by-laws that were in force immediately prior to 1 May 2020 as added to, varied or repealed by one or more amendments to the by-laws registered on the Record for the scheme at Landgate. In this case it will be necessary to inspect and / or obtain copies of the Schedule 1 and 2 by-laws that were in force immediately prior to 1 May 2020 and all the by-law documents registered on the Form 8 or Schedule of Dealings/Encumbrances or the scheme.
Other schemes may be operating under a management statement registered on the Form 8 or Schedule of Dealings/Encumbrances when the scheme plan was registered to create the scheme. Such management statement may have totally repealed the Schedule 1 and 2 by-laws that were in force immediately prior to 1 May 2020 or may have only varied those by-laws to the extent stated in the management statement. In which case establishing the current set of by-laws may involve constructing from the Schedule 1 and 2 by-laws in force immediately prior to 1 May 2020, the management statement and any by-law changes that have been recorded on the Form 8 or Schedule of Dealings/Encumbrances for the scheme.
6.5 Problems with by-laws that the strata reforms aim to resolve
Problem 1 is that pre-1 May 2020, by-law changes were recorded in separate documents. This made it difficult to know the current set of by-laws applying to a scheme, unless the scheme operated solely on the Schedule 1 and 2 by-laws in force immediately prior to 1 May 2020. Feedback from the Tribunal indicated that a cause of many disputes centred on schemes not knowing their current by-laws.
Problem 2 was that the by-laws in Schedule 1 and 2 in force immediately before 1 May 2020 lacked a clear classification. When a scheme created a new by-law there was uncertainty whether the by-law was a Schedule 1 or 2 by-law. This problem was exacerbated because Schedule 1 by-laws were made by resolution without dissent whereas Schedule 2 by-laws required a special resolution. By-laws may have been made pursuant to the wrong type of resolution.
6.6 Strata reforms relating to by-laws
The strata reforms do the following:
- by-laws are classified as governance by-laws or conduct by-laws. The meaning of governance by-laws and conduct by-laws is in STA section 3(1). When a strata company is making a by-law, classifying the by-law as either governance or conduct determines the type of resolution of the strata company that is required to pass the by-law. A resolution without dissent is required for a governance by-law and special resolution for a conduct by-law
- the STA provides a list of circumstances when by-laws will be invalid
- the STA introduces special rules for particular governance by-laws, for example, leasehold by-laws in a leasehold scheme, staged subdivision by-laws and exclusive use by-laws
- when applying to the Registrar of Titles for registration of a new by-law, amendment of by-law, or to repeal a by-law a consolidated set of by-laws must accompany the application
- when applying for registration of a new by-law the application must specify the classification of the by-law as governance or conduct as the case requires
- the Schedule 1 and 2 by-laws in force immediately prior to 1 May 2020 were impacted as a result of by-laws being classified as governance or conduct, resulting in:
- Schedule 1 clause 1(2) (Duties of proprietor, occupier or other resident) being classified as a conduct by-law
- Schedule 1 by-law 2 being classified as a conduct by-law (Power of proprietor to decorate etc.)
- several Schedule 1 by-laws in force immediately prior to 1 May 2020 were repealed and corresponding provisions incorporated in the STA. It was considered that these provisions should not be able to be changed by vote of the strata company. The Schedule 1 by-laws that were repealed and incorporated in the main body of the STA are:
- Schedule 1 clause 11 (General meetings of strata company)
- Schedule 1 clause 12 (Proceedings at general meetings)
- Schedule 1 clause 13 (Restriction on moving motion or nominating candidate)
- Schedule 1 clause 14 (Votes of proprietors) and
- Schedule 1 clause 15 (Common seal)
Schedule 2 clause 5 (Children playing upon common property in building) was also repealed.
- STA section 3(1) inserts a definition of the financial year for a strata company fixing 30 June as the end of the 12 month period for a scheme’s financial year unless the by-laws provide otherwise. STGR regulation 175 delays the application of the meaning in section 3(1) for a transitional period of 5 years starting 1 May 2020. During the transitional period a strata company may make a by-law by ordinary resolution that specifies the period a strata company uses or chooses to use as its financial year ending on a different date from 30 June (financial year by-law). Such by-law is taken to be a governance by-law.
6.7 Classifying by-laws as governance by-laws or conduct by-laws
The second step towards a consolidated set of by-laws is the classification of by-laws as governance by-laws or conduct by-laws.
In classifying its by-laws (including any new by-law, amendment of by-law or repeal of a by-law) as governance by-laws or conduct by-laws for the purposes of a consolidated set of by-laws, the strata company is assisted by the definitions of governance by-law and conduct by-law in STA section 3(1). Governance by-law is defined to include the by-laws in STA Schedule 1 and conduct by-law is defined to include the by-laws in STA Schedule 2.
6.8 Transitional provisions for schemes established pre-1 May 2020
The third step in the process towards a consolidated set of by-laws for a scheme established before 1 May 2020 is to consider the transitional provisions in STA Schedule 5 clause 4 and STGR regulation 180.
STA Schedule 5 clause 4 provides among other things that the by-laws that were in force for a strata company immediately prior to 1 May 2020 continue in force subject to the STA, those by-laws are taken to be classified as governance by-laws or conduct by-laws (taking into account the by-laws mentioned in 6.6 above that are now classified as conduct by-laws and the by-laws mentioned in 6.6 above that were repealed).
6.9 When must a scheme provide a consolidated set of by-laws?
A strata company established before 1 May 2020 does not have to take action now to have a consolidated set of by-laws but will have to lodge a consolidated set of by-laws complying with the STA when it applies for registration of a new by-law, amendment of by-law, or repeal of a by-law.
STGR regulation 180 is a transitional regulation applying to scheme by-laws in force immediately prior to 1 May 2020. When the strata company with such by-laws lodges its first set of consolidated by-laws after 1 May 2020 to accompany an application to amend the scheme to give effect to a new by-law, amendment of by-law or repeal of by-law, the consolidated set of by-laws must include the classification of the by-laws as governance or conduct, omit by-laws repealed by the strata reforms and otherwise be consistent with Schedule 5 clause 4.
Any changes to the scheme by-laws that are required by Schedule 5 clause 4, and any renumbering of scheme by-laws consequential on those changes do not require a resolution of the strata company.
Although a strata company is only required to lodge a consolidated set of by-laws when applying for registration of a new by-law, amending a by-law or repealing a by-law, regulation 180 permits a strata company established prior to 1 May 2020 to update its by-laws to reflect the changes made by Schedule 5 clause 4 and the renumbering consequential on those changes. If a strata company chooses to update its by-laws to take account of the changes required in Schedule 5 clause 4 no resolution is required in respect of those changes.
Bearing in mind that the strata reforms require the strata company to keep a current set of the scheme by-laws and the importance of scheme by-laws in the governance and management of the scheme, a strata company operating with by-laws that continue in force under Schedule 5 clause 4 should give serious consideration to making a consolidated set of by-laws. As a minimum the consolidated by-laws should reflect the changes in Schedule 5 clause 4. Once consolidated, the strata company should apply for registration of these by-laws.
6.10 Filling out the Scheme by-laws form
A consolidated set of by-laws is ready for registration at Landgate when:
- the process of classifying the by-laws for the scheme is complete,
- the changes required by Schedule 5 clause 4 are made, if applicable, together with a renumbering consequential on those changes, and
- after incorporation of any additions, amendments and repeals of the by-laws.
As stated in section 2 above, the Scheme by-laws form provides 3 options:
- Schemes established before 1 May 2020 voluntarily seeking registration of a consolidated set of by-laws to update their by-laws solely in accordance with the changes in STA Schedule 5 clause 4.
- New schemes lodging a consolidated set of by-laws different to the governance by-laws and conduct by-laws in Schedule 1 and 2 respectively of the STA.
- Schemes seeking registration of a new by-law, amendment of by-law or repeal of a by-law that must include a full and current set of consolidated by-laws and, if established before 1 May 2020, is updated to incorporate the changes required by Schedule 5 clause 4.
Print and execute the completed form, ensuring all signatories include their full names. Take or post this document to Landgate for registration by the Registrar of Titles including any relevant consent documents. Lodgement fees apply.