An association property rights by-law may confer rights or special privileges subject to conditions specified in the by-law see section 135 Community Land Management Act 2021. For example, a condition may require the payment of money by the owner(s) or association(s) concerned, at specified times or as determined by the association.
These by-laws may not be amended during the initial period and may only be amended after the expiry of the initial period by special resolution with the written consent of each person entitled by the by-law to use the association property: see section 135(1) Community Land Management Act 2021 and Amendment of Management Statement page.
A by-law affecting association property rights must either provide:
- that the association is to continue to be responsible for the proper maintenance of the association property or the relevant part of it or
- impose on the owner(s), association(s) or strata corporation(s) who have the benefit of the by-law, responsibility for the maintenance and upkeep of the association property.
The relative contribution that each proprietor pays as a levy toward association expenses is calculated according to unit entitlement. The only way that this can be varied is by means of an association property rights by-law where one or more of the proprietors gains a benefit in respect of association property and in return pays an additional contribution. Consequently, association property rights by-laws can be used in a number of ways to tailor a scheme to closer reflect the desires of the developer and proprietors.
If a developer does not propose to give a development contract in respect of a community or precinct scheme but wants to ensure continued access to the site so that construction can be completed, an association property rights by-law may be used. An area of association property still under construction, e.g. the tennis court, can be restricted to the developer as a proprietor of a development lot, until the tennis court is completed. By this method, the developer's contribution to the association during the construction phase can be altered. An association property rights by-law giving the developer construction rights will often be limited in time in some way, usually until construction has been completed.
Another way in which association property by-laws are used is to pass the care and maintenance of the association property of subsidiary schemes up to the community association. In many community schemes the majority of facilities will form part of the community association property. Even so, all subsidiary schemes must have their own association property. To ensure a consistent maintenance standard and to cut cost's it would be more efficient for the maintenance of all association property within a community scheme to be controlled by the community association.
By use of an association property rights by-law, the association property of a subsidiary precinct or neighbourhood scheme can be restricted to the use of the community scheme. In return, the community scheme will be responsible for maintenance of the precinct or neighbourhood property. In this way, the use of the association property is not made exclusive to fewer proprietors but expanded to allow use by all members of the community.
All details of the relevant association property should be set out in a by-law and must include:
- a description of the property to which it applies
- details of the persons entitled to use the property
- the terms and conditions on which those persons may use the property
- particulars relating to access to the property and the provision and keeping of any key(s) necessary
- particulars of the hours during which the property may be used
- provisions relating to the maintenance of the property
- matters relating to the determination, imposition and collecting of levies on those entitled to use the property.
(See also section 135(5) Community Land Management Act 2021 and Schedule 2, clause 11 Community Land Development Act 2021).
A person entitled to use relevant association property may lose that entitlement if the person fails to comply with a condition of use or to pay contributions to the association for the use of the property: see section 136 Community Land Management Act 2021.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/