Our by-laws require lot owners to maintain the grass under a certain height. One owner does not comply, saying the by-law only refers to lot property, not his exclusive use area. Is this correct?
In our rural estate, the front of each lot has an exclusive use area. Our by-laws require lot owners to keep the grass below 75mm if there is a dwelling or 150mm without a dwelling. This by-law specifically refers to the "lot" and not "exclusive use". Owners must maintain their exclusive use areas, and all do except one owner.
This owner's grass in the exclusive use area is up to a metre. The body corporate asked the owner to maintain the area in accordance with the by-laws. The owner responded to the committee that the grass height in the by-laws applies to the "lot" and not the "exclusive use" area. The owner advised the committee they are "maintaining the exclusive use area", although the grass is now a metre high. Do by-laws regarding mowing heights also apply to exclusive use areas or is the owner correct?
It's frustrating when the body corporate has to pay to resolve an issue with an owner who may be annoying for the sake of being annoying.
Unless specifically stated otherwise, the by-laws would apply equally to all areas of the site including the exclusive use areas.
Check your CMS for any particular wording around the exclusive use areas and their maintenance. If not, the idea that an exclusive use area is somehow excluded from the general by-laws doesn't carry water.
The question is, what do you do now?
If the owner refuses to cut the grass, the body corporate could do it. It can give an entry notice to the owner and rectify the issue. See the BCCM website for the regulations on lot entry: Entering a lot or exclusive use area
As per that page, a body corporate may be entitled to enter a lot or an exclusive use area because the owner or occupier has not complied with their maintenance obligations under the legislation or a by-law.
You could also look to resolve the issue with the owner via the Commissioner's office. Mediation may help the owner see the body corporate's perspective. Perhaps simply making the filing would indicate the body corporate means business.
The other alternative is to seek legal advice. This could be to provide a letter of warning to the lot owner or to help you draft an entry notice letter. You might consider whether your by-law is reasonable, and a lawyer could advise you on this.
The main question with these issues is, who should pay the costs? It's frustrating when the body corporate has to pay to resolve an issue with an owner who may be annoying for the sake of being annoying, but it is hard to avoid this cost. The body corporate can go through a legal process to reclaim its funds, but it's hard to do that when you are talking about what might be a few hundred dollars. If the body corporate enters the lot and has the mowing done, it might vote to pass these costs onto the owner and let the owner challenge that decision. If they do, the body corporate might lose, but at least it will have made its point.
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Will Marquand joined the Tower team as a General Manager and Senior Strata manager in 2020. He has widespread experience across all forms of commercial, industrial and residential schemes. He believes in proactive, ethical strata management and hopes to provide Tower’s customers with the knowledge and support required to take their schemes forward into the next generation of body corporate management. Will has experience working across residential, commercial and industrial schemes. A former journalist and teacher, Will's excellent communication skills help Tower grow its expanding business. William is a regular contributor to LookUpStrata.
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