Limitations of enforcing by-laws against tenants in a strata scheme

The case of Feletti v Eales [2019] NSWNCATAP 100 highlights the limitations of enforcing by-laws against tenants in a strata scheme. The case involved Ms Feletti, an owner and occupier of a unit in a strata scheme, and Mr Eales, an owner and landlord of the unit located above Ms Feletti. The By-laws for the strata scheme included a provision that required an owner or occupier of a lot to abstain from creating noise that was ‘likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using the common property.’ Ms Feletti claimed the Mr Eales’ tenants were making excessive noise, and therefore in breach of the by-laws, and subsequently sought an order in the NSWNCAT pursuant to s232 and 241 of the Strata Management Act (SSMA). The orders sought to restrict Mr Eales and his tenants from making noise between 10pm and 10.30am. On appeal the NSWCATAP affirmed the decision made at the initial hearing, paying close attention to the wording of s135 of the SSMA which states that by-laws for strata schemes binds “owners” of units but not “occupiers”. The Appeal Panel ruled that their powers did not extend to make orders against the tenants due to s135. This case illustrates that the tribunal does not have sufficient power to regulate the behaviour of a tenant.

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