Tribunal’s hands tied when it comes to tenants

The NSW Civil and Administrative Tribunal Appeal Panel’s (Appeal Panel) recent decision in Feletti v Eales [2019 NSWCATAP 100] (Feletti Case) has highlighted the limitations of enforcing by-laws against tenants in a strata scheme.

Facts

The case concerned Ms Feletti, the owner and occupier of a unit in a strata scheme, and Mr Eales, the owner and landlord of the unit above Ms Feletti’s.

The by-laws for the strata scheme included by-laws requiring:

• an owner or occupier of a lot to not create any noise “likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using the common property”
• an owner of a lot to ensure the floor space of specific rooms within their lot (including the living room and bedroom) was covered or treated “to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot” (Disputed By-laws).

Ms Feletti claimed Mr Eales’ tenants were causing excessive noise in breach of the Disputed By-laws. She sought orders pursuant to sections 232 and 241 of the Strata Schemes Management Act (SSMA) to:

• require Mr Eales and any occupiers of Mr Eales’ unit to install floor coverings to prevent the transmission of noise
• have Mr Eales and his tenants to refrain from creating noise between the hours of 10pm and 10.30am

to comply with the Disputed By-laws.

Decision

In the first instance, the NSW Civil and Administrative Tribunal (Tribunal) found:

• there was insufficient grounds to make the orders that there had been non-compliance with the Disputed By-Laws
• even if non-compliance had been established, the Tribunal could not make an order requiring the tenant of another lot owner to comply with the Disputed By-laws.

Ms Feletti appealed to the Appeal Panel. The Appeal Panel supported the Tribunal’s findings.

In its decision the Appeal Panel drew attention to the wording of section 135 of the SSMA, which provides that the by-laws for a strata scheme binds “the owners of lots”, but not occupiers.

Accordingly, whilst the Tribunal was empowered to make orders requiring Mr Eales to comply with the Disputed By-laws, its powers did not extend to making orders against Mr Eales’ tenants by virtue of section 135 alone.

Additionally, section 135 did not empower the Tribunal to order Mr Eales to ensure his tenant’s complied with the by-laws as the by-laws did not require a lot owner to enforce a tenant’s compliance with the by-laws of the strata scheme.

Takeaways

The Feletti Case confirms the Tribunal does not have the power to directly regulate the behaviour of a tenant unless there is an explicit enforcement provision in the by-laws for the strata scheme.

If strata schemes wish for the Tribunal to enforce by-laws against tenants then they should ensure that the by-laws adequately provide for this in their drafting.

Authors: Elly Ashley & Yunsi Feng 

Contacts

Sydney

Vanya Lozzi, Partner
T: +61 2 8083 0462
E: vanya.lozzi@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Elly Ashley

Yunsi Feng

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