Western Australian Consolidated Acts Western Australian Consolidated Acts (1) A strata company
may make by-laws, not inconsistent with this Act, for —
(a) its
corporate affairs;
(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company and may be amended, repealed or added to by the strata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;
(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Schedule 1 by-law and may only be made, amended or repealed by resolution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 by 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).]