Victorian Lot Owners are wonders what to do about neighbours who take over common property without approval.
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Question: A commercial lot in our apartment complex has been running hot and noisy electrical equipment in a car park space. The owners corporation is aware but has not taken action. The Council will not assist. What can we do?
I live in an apartment complex with a commercial premise on the ground floor.
The commercial lot has been running equipment such as a refrigerator, AC unit and exhaust fans in the car park space. The owners corporation is aware of the situation but has taken no action.
The parking space where the equipment is placed is not marked on the strata plan. Also, they have been running high-noise exhaust fans 24/7. The AC unit emits hot air. The potential risk of fire has been ignored.
We’ve approached our local Council. The Council said, “Go to the planning team.” The planning team said, “Talk to the owner corporation,” as it’s a private matter. How do we deal with this situation?
Answer: The answer depends on whether the offending items are in common property or private lot property.
The answer depends on whether the offending items are in common property or private lot property. If common property, are the items there pursuant to a lease or implied easement?
Ultimately, if the items are there lawfully, if they create a nuisance, there may be an action against the party. They may also be in breach of the owners corporations rules, depending on what rules have been adopted. If the Model Rules apply, an owner or occupier must not unreasonably create any noise likely to interfere with the peaceful enjoyment of any other person entitled to use the common property. However, that rule does not apply if the owners corporation has given written permission for the noise to be made.
As for fire risks, that is a matter for the owners corporation (and their insurer) and the Council to take action if appropriate. If the owners corporation considers it not to be an issue, then providing they are acting in good faith and the best interests of the owners corporation, that would not be compelled to take further action.
Phillip Leaman
Tisher Liner FC Law
E: ocenquiry@tlfc.com.au
P: 03 8600 9370
This post appears in Strata News #691.
Have a question about a neighbour taking over common property or something to add to the article? Leave a comment below.
This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.
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I live in a set of 4 BC Units in Melbourne.
1. All the common areas were maintained well however DHHS has a tenant in the front unit and DHHS do no maintenance or their tenant. The state of the property effects the first impression of all the others and is lowering the value. Can the common ground areas maintenance be paid for and charged to owners under BC fees?
2. A owner occupier has moved into another unit the reason they bought the property was stated as it was maintained well in the common grounds area. Since they have moved in they have refused to have funds allocated to maintain the common grounds and the whole property is run down, dead plants and overgrown. It will now involve a large cost to bring it back to any acceptable standard. Does a new owner have to maintain the purchased standard (pictures are available) and if the annual general meeting is run by an
property manager agent should they not be using their chair vote to ensure standard.
I live in a 4 unit strata in Melbourne. I have just received an email saying that our courtyards are common property and that we need to lease them. Can they do this? And if so who exactly are we leasing them from? Ourselves? How can I challenge this?
Your answer to this question, about an owner “taking over the common property gardens” is badly deficient in so many ways. There were multiple questions which first ought to have been asked about the history of the common property in question before it was ever concluded these neighbours were the ones in violation.
In a mirror image to that “takeover’, here in the Perth area, WA, in a 24 unit multi level strata complex, we as Owners, were faced with a miserable group of Owners, almost none who actually deigned to live on premises, that had all but abandoned the complex. As long as their rent cheques still arrived, they did not care. They even refused to elect an Owners Council, leaving the place to be badly administered by a negligent strata management company (Redacted by ADMIN) who never set foot on the property during this time. Nor had any Owners as far as we knew. Abandoned.
Returning from overseas, appalled at the state affairs, mainly a destroyed reticulation system and stolen and dead common property gardens, we set about restoring the place to its former glory at our own expense. Only then did the other Owners awaken to elect a Council and thwart our efforts, not to IMPROVE but to RESTORE.
Two successful challenges later against the Owners Council, at the State Adminstrative Tribunal for their unlawful (WA Strata Titles Act 1985) efforts to obstruct our restoration, we now have the place looking like it did previously.
The Owners Council tried throwing the very same allegations against us as you cited in your answer. However, with no evidence to support their false claims, they were laughed out of SAT.
They wanted to destroy a perfectly healthy tree, without consulting the Corporation for its advice, consent or spending authority, that even their own expert arborist in his report stated was a healthy specimen. ( )
I would be wary of a one-size-fits-all answer to these issues, and dig a little bit into the background first.