This article is about the Section 155 – Notice to Rectify Breach for VIC Owners Corporations. Whose name do we put on the breach notice? Who can serve the breach notice?
Table of Contents:
- QUESTION: A tenant in our building holds loud parties outside the council hours for residential noise. As the OC Manager only has a legal relationship with the lot owner rather than the tenant, who gets the breach notice?
- QUESTION: When serving a breach notice, can the notice be served via email? I thought it must be served via post to the allocated owner’s letterbox.
Question: A tenant in our building holds loud parties outside the council hours for residential noise. As the OC Manager only has a legal relationship with the lot owner rather than the tenant, who gets the breach notice?
Answer: the OC can and should breach an occupier/tenant directly when OC rules or regulations have been breached.
You are correct in your understanding that an OC Manager only has a legal relationship/responsibility to the lot owner/s. However, the OC Act permits the owners corporation to breach a tenant directly. This must be done correctly, in writing and using the approved form.
Section 152 of the Act states that:
A lot owner or an occupier of a lot or a manager may make a complaint to the owners corporation about an alleged breach by a lot owner or an occupier of a lot or a manager of an obligation imposed on that person by this Act, the regulations, or the rules of the owners corporation.
So, a prescribed breach notice provided and forwarded by the owners corporation can be addressed directly to the offending tenant bypassing the OC Manager. The OC must keep a record of the breach notice (and all other notices) issued.
When issuing a complaint form or breach notice, the below steps found under section 155 must also be followed.
- A notice must specify the alleged breach and require (in this case) the tenant to rectify the breach within 28 days.
- The owners corporation must also give the lot owner a copy of the breach notice. The notice informs the owner of their tenant’s behaviour but will also assist the owner and their rental property manager in promptly addressing the issue with the occupiers.
In summary, the OC can and should breach an occupier/tenant directly when OC rules or regulations are breached and must also inform the lot owner by issuing them a copy of the notice for their information and record keeping.
Guy Garreffa
StrataPoint
E: guy@stratapoint.com.au
P: (03) 8726 9962
Please note that the information contained in this article is not legal advice and should not be relied upon as such. You should obtain legal advice or instructions before you take any action or otherwise rely upon the contents of this article.
This post appears in the April 2023 edition of The VIC Strata Magazine.
Question: When serving a breach notice, can the notice be served via email? I thought it must be served via post to the allocated owner’s letterbox.
Answer: It is acceptable and legal to issue a Notice to Rectify Breach via email.
Yes, it is acceptable and legal to issue a Notice to Rectify Breach via email.
The requirements for issuance of the notice are detailed in Section 158 of the Owners Corporations Act 2006. The recent amendments to the Act in December 2021 now allow notices to be served electronically (see ‘Note’ contained in Section 158).
Callum Wilson
Bright & Duggan
E: callum.wilson@bright-duggan.com.au
P: 0427 339 980
This post appears in the November 2022 edition of The VIC Strata Magazine.
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Read next:
- VIC: Upcoming OC Act changes for Committees to be aware of
- VIC: How an Owners Corporation Can Handle Incorrect Parking
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With regards to dealing with tenants parking in common property, There’s no Body Corp. The managing agent of the unit, has had no luck in having the tenants comply and stop parking there. I’ve contacted the unit’s owners a couple of times asking them to work with me in formulating a breach notice but after they contacted their estate agent, they’ve advised me there’s nothing more they can do on the matter. I feel completely let down by the other owners of the 2nd lot with this matter … it’s left with me to deal with on my own. There’s no Body Corp but I believe we’re an OC, How am I supposed to act as an OC, if the owners are not interested or willing to help me with this issue. The owners seem to believe they don’t have to do anything about it and just handball it to me. Is this correct? Can they do this, as it just does not seem fair? Do I have to seek legal advice at my cost, when I’ve emailed the owners on several occasions asking them to work together to resolve it. I’m living with this issue daily for 15 months now. Please help guide me to what steps I take next?
There is always an owners corporation associated with multi-lot developments having three or more units (there are, if I remember rightly, special rules for two-lot developments. Please note that I am not a lawyer; these comments are off the top of my head, and you should verify the details for yourself instead of relying on what I have to say.)
If the development is self-managed, it seems that you are de-facto the chair of the committee for the OC. It usually ends up being the case that a small number of people within a development end up carrying the burden, rather than it being shared amongst all owners.
So the first step I would take, were I in your shoes, would be to look at the current state of the OC committee: meetings, minutes, who’s been elected to what positions, etc., etc. If there haven’t been such meetings, then there’s the possibility that the owners (collectively) are in breach of their legal obligations, and I would strongly suggest seeking legal advice to cover yourself before working to rectify that situation.
Once the committee situation has been cleared up, you should be in a better legal position to seek the issuance of a formal breach notice, which is pretty much the only option available if the owner and tenant aren’t willing to work with you on an informal basis. Point is: if you need to go down that path, you need to protect yourself and make sure that all of the legal formalities are covered off, else you risk personal liability. You might be able to get some traction by speaking with the owners of the other units (ie: not the one that is causing the problem), depending on how they feel about the situation. Remember: all four owners, not just you, are part of the OC – even if it’s an informal setup. Three owners working together can get a lot done even in the face of an intransigent fourth owner, but the critical thing is making sure all of the formalities and documentation have been covered off; you can’t afford to just shoot from the hip on this.
When people are willing to work together cooperatively, the informal arrangement can work well. But when that breaks down, it’s unfortunately necessary to dot all the i’s, and cross all the t’s, and that may mean a lot of work to resolve what should be a simple matter. I feel for you, I really do; I’m in a similar position with my development, but fortunately I’m not the only person on the committee who’s irritated by the visitor parking being used by residents, so we’re pushing to get traction on the problem. It does help that we have a formal strata manager that can mediate the process.
Good luck. It’s unfortunately a lot harder than it should be, but it seems that your choice is to either do that work, or just accept the situation. Neither option is great, I acknowledge that.