Changing a strata by-law in WA, and the vote you actually need

Someone at your annual general meeting wants to change a by-law. Maybe it is pets, maybe it is short stay letting, maybe somebody wants to enclose a courtyard that has been fenced since the eighties. The proposal gets discussed, a show of hands happens, and everyone leaves believing it passed. Then it turns out the wrong sort of vote was taken and nothing has changed at all.

The rules are not complicated once you see them laid out. There are two kinds of by-law and four kinds of resolution, and the trick is knowing which pairs with which.

The two kinds of by-law

Governance by-laws deal with how the scheme is run. Money, common property, the committee, and who is allowed to do what to the building.

Conduct by-laws deal with how people behave in the scheme. Noise, parking, rubbish, pets, what you can hang off a balcony.

The difference matters because they carry different voting thresholds, and a proposal put to the wrong threshold does not take effect.

The four resolutions

• Ordinary resolution. More than 50 per cent of the votes cast are in favour, counted by number of lots, or by unit entitlement if a poll is demanded.
• Special resolution. In a scheme of more than five lots, the votes in favour must be at least 50 per cent of both the number of lots and the unit entitlements, and the votes against must be fewer than 25 per cent. Smaller schemes are calculated differently, so check the Act for a scheme of five lots or fewer.
• Resolution without dissent. No lot votes against it.
• Unanimous resolution. Every lot votes in favour.

Resolutions without dissent and unanimous resolutions also carry timing rules: 14 days of notice, and a 28-day voting period. You cannot decide one of these on the night by a show of hands.

Which by-law needs which vote

• Conduct by-law: special resolution.
• Governance by-law: resolution without dissent, or a unanimous resolution in a two-lot scheme.
• Exclusive use by-law: resolution without dissent, plus the written consent of the owner of each lot that is, or is proposed to be, a special lot.

The mistake everyone makes

A resolution without dissent is not a unanimous resolution, and people use the words as though they mean the same thing.

Without dissent means nobody votes against. An owner who abstains, or who does not vote at all, does not stop it. Unanimous means every lot actually votes in favour, so an abstention is fatal.

In practice that difference decides outcomes. A scheme with three disengaged investors who never return a voting paper can pass a resolution without dissent comfortably and can never pass a unanimous one. If your meeting is told the vote needs to be unanimous when the Act only asks for no dissent, a perfectly good proposal dies for no reason.

Exclusive use, and why the plan does not settle it

Section 43 of the Strata Titles Act lets a strata company make a by-law giving a lot exclusive use of part of the common property. A courtyard, a carport bay, a store room. The lot with the benefit is called a special lot, and the area is sometimes called special common property.

Two things about these are worth knowing before you buy or vote.

First, they can exist from the beginning. By-laws can be lodged with the scheme when it is registered, before any lot has been sold, so a courtyard can have been exclusive use since 1978 without any owners meeting ever voting on it. The section 43 machinery above applies when an existing strata company makes, amends or repeals one.

Second, and this catches people constantly, a marking on the strata plan is not the same as a by-law. Landgate puts it plainly: “Some older strata plans have notations indicating certain areas are ‘for the use of’ particular lots. These notations do not have any effect, unless an exclusive use by-law has been registered to support them.”

So an area marked for the use of Lot 4, with no by-law behind it, is common property. It looks identical on the drawing to one that is properly granted. The only way to tell is to read the registered by-laws.

What this means if you are buying

Read the by-laws, not just the plan. If a courtyard, carport or store is being presented as belonging to the lot, ask which by-law grants it and check that the by-law exists and covers the area you are looking at. If it does not, you are buying a lot with a fence around some common property, which is a different thing and can be taken back.

It is also why we word our advertising the way we do. We describe a courtyard as being for the use of a particular unit rather than under its exclusive use, unless a registered by-law says otherwise. The second phrase is a legal claim, and it should only be made by someone who has read the document.

Every property we take to market goes out with the by-laws in the information pack, so buyers can check this for themselves before they offer rather than after.

The short version

• Conduct by-laws need a special resolution. Governance by-laws need a resolution without dissent, or unanimous in a two-lot scheme
• Ordinary is more than half the votes cast. Special, in schemes over five lots, needs 50 per cent of both lots and unit entitlements in favour with under 25 per cent against
• Without dissent means nobody votes against. Unanimous means everyone votes in favour. They are not the same and an abstention only kills the second one
• Resolutions without dissent and unanimous resolutions need 14 days of notice and a 28-day voting period
• Exclusive use by-laws need a resolution without dissent plus the written consent of the benefiting owner, and they can also date from the scheme’s registration
• A “for the use of” notation on the plan has no effect without a registered by-law behind it

This article is general information about the Strata Titles Act 1985 (WA) and Landgate’s published guidance. It is not legal advice. Thresholds can differ for small schemes and for particular kinds of by-law, and your strata manager or a lawyer can advise on your scheme.