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.
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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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