SA: Q&A Breach of ByLaws and Access to Common Property

This SA article is about how to manage a breach of articles like residents dumping rubbish on common property.

Table of Contents:

• QUESTION: A resident has locked a gate leading to their backyard. The yard houses the gas and water meter. They refuse to remove the lock. What can we do?
• QUESTION: In our 3 lot strata, our house’s driveway access to the road is common land. One owner stores their council bins on the driveway. The bins are unsightly and make car access difficult. How can we stop them?
• QUESTION: Residents are dumping rubbish in our strata. If we give a week’s warning, can we engage a waste removal company and then bill the offending resident?

Question: A resident has locked a gate leading to their backyard. The yard houses the gas and water meter. They refuse to remove the lock. What can we do?

In our strata group, a tenants has put a lock on a common property gate that leads into their backyard. The backyard contains the gas and electrical meters. We no longer have access to these service.

Is the backyard considered common property because of the location of the meters? Or would there be an easement? Are the residents able to deny access to space? Can they put a lock on the common property gate?

Our strata manager has requested the lock be removed but both owners and tenants refuse to assist. The Strata Manager now suggests we knock on the owner’s door and ask for access when required. This is not suitable.

Answer: The next course of action is either mediation, or taking the matter to the Magistrates Court and request that the court orders the owner/tenant remove the lock.

This is not an uncommon issue in older strata corporations. When the units were developed, it is likely the meters were located behind a fence, perhaps without a gate or in an open carport, so there were no access issues. However now many owners / residents request more secure yards and carports, creating issues like this.

The strata plan will indicate if there is a section of common property between the wall of the building and the original fence (original fences are also marked on the common property).

You can see in the below diagram, the yard of unit 1’s boundary is marked by a path running behind all units. This is common property and cannot be locked or used for any unit’s private yard unless granted by the corporation. The area must remain free for all units to access at any time. The any gate that may have been installed at the beginning of this path cannot be locked.

As you have stated, your Strata Manager has asked the owner and tenant to remove the lock but they are not complying with this request. Unfortunately the next course of action is either mediation, or taking the matter to the Magistrates Court and request that the court orders the owner/tenant remove the lock.

Carrie McInerney
Horner Management
E: carrie@hornermanagement.com.au
P: 08 8234 5777

This post appears in Strata News #641.

Question: In our 3 lot strata, our house’s driveway access to the road is common land. One owner stores their council bins on the driveway. The bins are unsightly and make car access difficult. How can we stop them?

We own a lot in a 3 lot strata in South Australia.

Our house is to the rear of 2 townhouses that face the street. Each of the townhouses has its own driveway with direct access to the road. Our house’s driveway access to the road is common land. One owner stores their council bins on the driveway common land. We have asked them to move the bins as they are unsightly and make car access difficult. They have refused. What steps/options should I take and have to have the bins moved?

Answer: If talking is not an option, review your bylaws to see if there is a rule on storing of bins / waste management.

This is a common issue for many residents living in community living.

The first thing we would advise occupants is to get to know your neighbours. A friendly discussion can solve many of the world’s problems.

Sometimes occupants are not aware their behaviours are causing a nuisance to others.

If talking is not an option, review your bylaws to see if there is a rule on storing of bins / waste management.

If there is, you may need your strata manager to help assist enforcing these bylaws as using common land for private use is generally not allowed unless approved by the corporation.

Consistent education for occupants may prove to be useful.

At your Annual General Meeting, raise this item and see if there is a common solution that works for all involved.

Tyson D’Sylva
Ace Body Corporate Management
E: tyson.d@acebodycorp.com.au
P: 08 8342 1544

This post appears in Strata News #603.

Question: Residents are dumping rubbish in our strata. If we give a week’s warning, can we engage a waste removal company and then bill the offending resident?

Residents are dumping rubbish in our strata. Currently, there is a large old oven sitting on one garden bed, and another one of our tenants continually stores flammable and corrosive industrial rubbish next to common property.

Strata Management has written to this resident 3 times and they have been told to cease and clean up the mess but rubbish has continued to build over the last 6 months.

Council has been told but will take no action until the waste actually begins to leak. They will send out an EPA officer to observe the cleanup.

Instead, can we engage a waste removal company and then bill the offending resident? We would give them a week’s warning, of course.

Answer: As your example is a clear breach of the articles. You can arrange to have the rubbish removed and then charge the owner for the costs incurred.

Dumping rubbish at Strata Complexes is one of the hardest issues to tackle. We are constantly experiencing issues with tenants constantly placing rubbish on the complex, especially when vacating the property. As for the scenario you have outlined, I believe that you can charge the owners for the collection of the rubbish.

Schedule 3 of the Strata Titles Act, also known as the ”Articles of Strata Corporation” part 7 (b) states, A person bound by these articles (this includes tenants and visitors) must not allow refuse to accumulate so as to cause justified offence to others and part 11 (b) states, A person bound by these articles must comply with all council by-laws relating to the disposal of garbage.

As your example is a clear breach of the articles, you can arrange to have the rubbish removed and then charge the owner for the costs incurred. I have outlined the sections of the Act below that you can refer to when sending the notices.

Section 28 (1) states that you can, by notice in writing to a unit holder, require the holder

Power to enforce duties of maintenance and repair

2. To carry out specified work to remedy a breach of this Act or the articles on the part of the unit holder, a former unit holder, or an occupier or former occupier of the unit;

2. If the unit holder does not comply with a requirement imposed under this section within the time allowed in the notice, a person or persons authorised by the strata corporation may (using such force as may be reasonably necessary in the circumstances) enter the unit and carry out the specified work.
3. A power of entry must not be exercised under subsection (2) unless the unit holder and the occupier of the unit have been given at least 2 days notice in writing of the proposed entry.
4. Any cost reasonably incurred by the strata corporation in having work carried out under this section may be recovered as a debt from the unit holder.

Carrie McInerney
Horner Management
E: carrie@hornermanagement.com.au
T: 08 8234 5777

This post appears in Strata News #592.

Have a question about how to manage the issue of residents dumping rubbish on common property or something to add to the article? Leave a comment below.

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Read next:

• SA: Q&A Strata Maintenance Responsibility
• SA: Q&A Strata Accounts, Bookkeeping and Auditing
• SA: Q&A Looking to Change Strata Management Companies?

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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