VIC: Q&A Nuisance and Neighbours in an Owners Corporation

This article is about about light pollution from neighbours.

Table of Contents:

• QUESTION: A lot owner has had dog faeces thrown from above onto their balcony and the building’s common property. The suspected lot owner denies any knowledge of the act. What can we do?
• QUESTION: We’ve lived comfortably above the heated pool in our apartment complex for years. A recent temperature increase has resulted in uncomfortable sleeping conditions. Can we ask for the pool to be turned back down?

Question: A lot owner has had dog faeces thrown from above onto their balcony and the building’s common property. The suspected lot owner denies any knowledge of the act. What can we do?

An owner in our building has developed a nasty habit of disposing of their dog waste into the building’s common property drain.

The lot owner below tried reasoning with the lot owner above about the disposal of the dog faeces but was met with denial and anger. The downstairs lot owner approached the owners corporation (OC) for help. Our owners corporation manager advised the offending lot owner to cease. Within days of the OC’s action, the downstairs owner has had dog faeces thrown all over their balcony furniture. The suspected lot owner denies any knowledge of the act and requests a full investigation.

What can the committee do?

Answer: See below for detailed steps taken to successfully resolve a similar situation.

This sounds like a tricky situation. I dealt with something similar recently, so I’ll detail my steps to resolve that situation successfully.

1. Write to all owners and post flyers in the common areas, noting that a resident has thrown dog faeces on the orientation and floor (i.e. from levels 4-6 on the northwest side of the building), and the OC requires assistance catching the perpetrator. You could note how disgusted the committee and residents are and that the OC intends to take whatever action it must against the perpetrator.
   This approach may seem a bit extreme, but it’s likely to get the offender’s attention, plus it’s an indirect way of ‘naming and shaming’. The OC is narrowing it down to a subset of units without specifying one, and residents will probably figure it out for themselves.
2. If the above doesn’t work, arrange an inspection of all units along the relevant side of the building to confirm who has pets and to assess the ‘waste management’ system in place. This is a useful step to document evidence should the matter escalate further.
3. As the last step, you could write to owners advising that the OC has engaged a DNA testing company to examine the faeces and that the OC would require a swab of pets to confirm which animal the faeces is coming from.

For my recent situation, steps 1 and 2 got the perpetrator’s attention, but it was not until step 3 that the issue ceased.

If you get to step 3 and the issue continues, you should seek legal advice to find out if the OC has the power to swab of pets. This was essentially an empty threat from the committee I worked with.

If you are still unable to resolve the issue, seek further legal advice for how to address the matter.

Callum Wilson
The Strata Shepherd
E: info@thestratashepherd.com.au
P: 0431 925 908

This post appears in Strata News #707/a>.

Question: We’ve lived comfortably above the heated pool in our apartment complex for years. A recent temperature increase has resulted in uncomfortable sleeping conditions. Can we ask for the pool to be turned back down?

I live above the heated pool in an apartment complex. For 17 years, after some discussions when we first moved in and found the apartment too hot, we have had a constant temperature that although warm, is liveable.

Recently, a couple of tenants wanted a warmer pool and the new concierge has turned the pool up several degrees. This has resulted in temperatures of 25 to 26 degrees in our bedroom at night. This is not comfortable. Am I in my right to ask them to turn it down? Should we escalate the matter to VCAT?

Answer: In this instance, it may be argued that the higher temperature is causing a hazard to your health.

One may refer to the Model Rules, “1.1 Health, safety and security of lot owners, occupiers of lots and others. A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.” In this instance it may be argued that the higher temperature is causing a hazard to your health.

It is also worth noting 6.1 Behaviour of owners, occupiers and invitees on common property An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property. In this instance, it may be argued that the peaceful enjoyment of your lot is affected by the higher temperature and behaviour of tenants.

It is always preferable to resolve these matters by discussion. You may therefore decide to write to the Committee expressing your concerns with the view to a resolution. Alternatively, you may refer to Part 10 of the Act – Dispute resolution – Item 7 in the Model Rules. These clearly define the process for dispute resolution.

In our opinion, VCAT should always be viewed as a last resort once all other avenues have been exhausted.

Stratabase Holdings
E: info@stratabasemgt.com
P: 0412 247 589

This post appears in the May 2022 edition of The VIC Strata Magazine.

Read next:

• VIC: Q&A Lighting in common areas – expenses assigned to individual units
• VIC: Q&A Let’s Just Not Tell Them About the Cat in our Apartment
• NSW: Q&A Light Shining Into the Apartment Causing Nuisance

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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