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By-laws (Rules)

Unlike the Strata Titles Act 1988 (SA), the Community Titles Act 1996 (SA) does not include a standard set of by-laws. The Community Titles Act 1996 (SA) requires developers of community schemes to draft individual by-laws (Community Titles Act 1996 (SA) ss 12, 34) which reflect the nature of the particular scheme [s 11(4)]. The by-laws must cover the administration, management and control of the common property; must regulate the use and enjoyment of common property; and must regulate the use and enjoyment of community lots to give effect to the scheme description [s 34(2)].

In relation to buildings and other structures on community lots, the by-laws may also regulate issues such as position, design, dimensions, construction, appearance, maintenance and repair [ss 34(3)(a)(i)—(ii)]. Landscaping and the appearance of community lots can be covered in the by-laws [ss 34(3)(a)(iii), (b)], and requirements or restrictions on the use of community lots can be imposed to prevent interference with the use and enjoyment of other lots [s 34(3)(c)].

The by-laws cannot be inconsistent with the scheme description (if any) or development contract (if any) of the scheme or, if there are higher levels above the scheme, the by-laws or scheme description or development contract of those schemes [s 41].

A by-law comes into force when the original by-laws are deposited with the Land Titles Office or a certified copy of the new by-laws is lodged with that office [s 40].

Those bound by the by-laws

The by-laws are binding on the community corporation, the owners and occupiers of the community lots and the development lot or lots (if any) comprising the scheme, and persons entering the community parcel [s 43(1)].

Variation of the by-laws

In schemes where one or more lots are used, or intended to be used, for residential purposes, the by-laws may be varied by special resolution of the corporation [s 39]. That provision also applies to schemes with only commercial lots but, in that case, any by-law that stipulates the number of votes that a lot may have can only be varied by unanimous resolution [s 87(2)].

Note that if one or more of the lots in a scheme is used or intended to be used solely or predominantly for residential purposes then each community lot only has one vote [s 87(1)(a)]. See: Voting at General Meetings.

What cannot be in the by-laws

Monetary obligations

The by-laws may not impose a monetary obligation on the owner or occupier of a lot except where:

  • the by-law provides for the exclusive use of part of the common property by that owner or occupier [s 37(1)(b)]; or
  • the by-law deals with a lot owner's responsibility to pay an insurance premium, where the by-laws authorise or require the community corporation to act as an agent for the owner in arranging the insurance policy [s 37(2)(b)].

Access to a lot

The corporation may not prevent access by the owner or occupier or other person to a lot [s 37(1)(c)].

Assistance dogs and therapeutic animals

The by-laws may not prevent an occupier of a lot who has a disability from having and using an assistance dog, or a therapeutic animal [s 37(1)(d)]. Similarly, a visitor to a lot who has a disability may not be prevented from using their assistance dog or therapeutic animal [s 37(1)(e)].

An assistance dog is an accredited guide, hearing or disability dog.

A therapeutic animal is an animal that has been certified by a medical practitioner as being required to assist a person with their disability [Equal Opportunity Act 1984 (SA) s 88A]. The animal must have been trained, in some way, for that task.

By-laws that reduce the value of a lot or unfairly discriminate against a lot owner

Any by-laws that reduce the value of a lot or unfairly discriminate against a lot owner may be struck out by court order [s 38(1)]. The application to strike out the by-law must be made by a person who was a lot owner, which includes a person who has contracted to purchase the lot, when the by-laws came into force. The application must be made within three months after the person (or either or any of the lot owners where the lot is owned by two or more persons) first knew, or could reasonably be expected to have known, that the by-laws had been made [s 38(2)]. An application to strike out a by-law would normally be made to the Magistrates Court as a minor civil action under s 142.

By-laws (Rules)  :  Last Revised: Wed Sep 5th 2018
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