Question: When an occupier repeatedly leaves items on common property in violation of a by-law, disregards committee requests, and claims theft after removal, what process can the committee legally follow to enforce the by-law?
We have a by-law stating occupiers must not leave items on common property. What is the process for committees to follow when occupiers place items on common property and disregard the committee and by-laws?
At a common property maintenance inspection, the committee found buckets and bowls in the atrium garden area. Not knowing who owned them, we removed the items. An occupant emailed the committee stating that their buckets and bowls had been stolen from the common area garden and must be returned, or they would lodge a police report. The committee returned the items, and the occupier was asked not to leave items on common property. They immediately put the items in the garden bed. The committee again removed them. The occupier advised that our by-laws do not give body corporate members the power to take the occupier’s property, nor do they “deem any transfer of title.” What can we do next?
Answer: In the absence of a clear direction, most body corporates will fall back on the standards of reasonability.
There is no defined process under the Act for how a body corporate should manage personal items left on common property. In the absence of a clear direction, most body corporates will fall back on the standards of reasonability.
Usually, that means starting with a letter to occupants, or a specific occupant, about the issue. Ask them to remove the items, state the reason why and provide a date by which they must remove them. Advise what the body corporate will do if the items aren’t removed.
If the items are removed by the deadline, consider the issue closed and move on. If not, in the first instance, move the items to a suitable spot for safe keeping and advise the occupants where and how to reclaim them.
After having their contents removed, most people will get the message, and the issue will die down, although you may need to repeat the process periodically to keep reinforcing the rules.
If owners get their items back and return them to the common property, you could rerun the exercise, or you could escalate. Perhaps the body corporate could set strict standards for the return of belongings, requiring owners to identify the items as their own or explain why they were left on the common property. If occupants are a headache to owners, be a headache back to them.
If the problem keeps recurring, you could escalate to the point where you dispose of the items. Again, you should provide notice of the intent to do this in advance.
The exact path you follow may depend on the cost of the items and the people you are dealing with. In this case, the cost appears to be minimal – just some buckets and bowls – so if you remove them and the owner keeps returning them, there doesn’t seem to be much risk in disposing of the items if you have to. If the items were more expensive, you may have to weigh up the risk of any claim against the body corporate for compensation.
The above processes notwithstanding, in this case, you may also want to think about why the owner is leaving the items there and what degree of trouble it is causing. Do they think the land belongs to them, or because it is common property, anyone should be able to attend it? Are they gardening the area because no one else is? Would it be OK if they continued to garden the area if they tidied up a bit better? We don’t know the circumstances, but if possible, try to have a conversation with the person in question and be flexible in the approach to resolution.
Lastly, for readers who want a more legal description of how to manage abandoned goods, Legal Aid Queensland has a good website to refer to, although it seems the law is sufficiently vague as to leave most people needing to make judgement calls over how to manage these issues: Legal Aid QLD: Abandoned goods
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924