This article about dealing with nuisance correspondence has been written by Holly Oddo, Mahoneys.
At times, committee members and other representatives of the body corporate may be exposed to voluminous, frequent, offensive or inflammatory correspondence from lot owners or occupiers within the community titles scheme.
Adjudicators have recognised that:[1]
It is unfair on other lot owners and occupiers to have the resources of the body corporate exhausted by the lengthy and repetitive communications of a single lot owner.
So, what can be done by bodies corporate to restrict nuisance correspondence issued by lot owners and occupiers?
Section 167 of the Body Corporate and Community Management Act 1997 (Act) creates an obligation on an occupier to ensure that the lot or common property is not used in a way that causes a nuisance or interferes unreasonably with the use and enjoyment of another lot or common property in the scheme (General Nuisance Provision).
However, in circumstances where the nuisance is in the form of a communication – such as an email – rather than conduct, it is difficult to enforce the General Nuisance Provision.
In Drift Palm Cove [2021] QBCCMCmr 148 it was found:
Most significantly, the body corporate has not established that the respondent’s conduct arises from a use of her lot or common property. The body corporate says it ‘understands’ the correspondence is sent from the respondent’s lot, but it provides no evidence of this. The respondent does not comment on it. While the respondent could be sending emails from a computer or other device on her lot, presumably she could equally send them from elsewhere.
Even if some or all of the correspondence was sent by the respondent while on her lot or common property, the body corporate has not established that her conduct relates to the use of the lot or the way in which she uses her lot. That is, there is no apparent connection between the use of the respondent’s lot and the effect of the emails on others.
In order to rely upon the General Nuisance Provision, it would need to be shown that the communication was sent from scheme land and the use of the lot or common property created a nuisance or unreasonable interference.
A more effective mechanism to regulate nuisance correspondence is to impose a by-law which requires lot owners and occupiers to communicate with the committee and body corporate contractors in a way which is reasonable.
In Tank Tower [2015] QBCCMCmr 322, Mahoneys was the first to successfully obtain orders to restrict nuisance correspondence which was found to have contravened the by-laws.
The adjudicator imposed the following restrictions on the lot owner:
- written communications should only be sent by pre-paid post to the address of the Body Corporate Manager;
- a maximum of one piece of written communication may be sent per week, unless the Body Corporate invites additional communications;
- any item of written communication should be limited to a maximum 2 pages in length containing a maximum of 1,000 words;
- verbal communications shall only be made by telephone to the Body Corporate Manager;
- written and verbal communication should be courteous and not abusive or offensive.
In order to make an application to the Office of the Commissioner for Body Corporate and Community Management for final orders, the body corporate would need to ensure it has an appropriate by-law addressing the nuisance correspondence, issue a by-law contravention notice and participate in conciliation.
[1] Plantation at Rainbow Accommodation [2022] QBCCMCmr 12.Holly Oddo Mahoneys E: hoddo@mahoneys.com.au P: 07 3007 3753
This post appears in Strata News #704.
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This article has been republished with permission from the author and first appeared on the Mahoneys website.
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