Qld lot owners are concerned about appearance of the lot and what would constitute a breach. Todd Garsden, Hynes Legal provides the following responses.
Question: We have a body corporate chairperson who treats the common property garden area as if it was his exclusive use area and it is full of his unsightly items. What about the appearance of the lot? What do we do now?
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We have a body corporate chairperson who treats the common property garden area outside his ground-floor unit as if it was his exclusive use area. He has pots on it, we have reindeer, plastic kangaroos leftover from last Christmas and it is very unsightly.
The was told to remove the items by the previous body corporate committee. He agreed to remove the items but nothing has been done.
What about the appearance of the lot? What do we do now? We have a new committee who have been hand-picked by the chairperson and his best friend the facilities manager.
Answer: Complete a BCCM Form 1.
I suspect that this would be a breach of the scheme’s by-laws (but would need to read them to double check). If the owner would like action taken they should complete a BCCM Form 1 and send it to the committee.
The committee will then need to choose whether or not to take by-law enforcement action. If the committee chooses not to, the owner can then seek to enforce the by-laws without the intervention of the committee (but needs to give the committee the opportunity to do so first).
This post appears in Strata News #287.
Question: We put a cat enclosure on our balcony and received a breach notice under the Appearance of Lot bylaw. Isn’t a cat enclosure just like outdoor furniture? Why is no-one else in breach?
I have a question as a tenant in a multi-unit complex. Our units are highly visible to the street and other units due to the layout. Several of them have glass fronts to the balconies and the bottom floor has open staircases up to the apartment doors. Due to this layout, every balcony has furniture and other items visible from the street and other lots. We put a cat enclosure on our balcony and received a breach notice under the following bylaw:
Appearance of Lot
An occupier must not hang any washing, towel, bedding, clothing or other articles or display any sign, advertisement, placard, banner, pamphlet or like on any part of its Lot in such a way as to be visible from another Lot, the Common Property or outside the Scheme Land, except with the consent in writing of the Body Corporate Committee.
We requested permission to keep the cat enclosure but I’m not sure where in that bylaw we are actually in breach and we’re anticipating being denied.
If we are in breach because we have outdoor furniture then due to the design of the units every single property is in breach. Do we have redress under fair application (nobody else seems to have been given this notice), that outdoor furniture isn’t covered or the fact that the bylaw is not feasible practically if applied in that manner?
Answer: The committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.
All occupiers need to comply with the by-laws and the committee must act reasonably in enforcing any breaches – so the committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.
So the committee must either enforce all breaches (which is their obligation) or take the same approach to all breaches
Depending on the size and visibility a cat enclosure would be capable of breaching that by-law.
This post appears in Strata News #203.
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Todd Garsden
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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Thank you for your help and I apologise for the auto corrections. I will call the free call no to get more advice. We have withdrawn our shed and patio cover application and the EGM will now be a committee meeting only for our pet application which will be held on Friday.
We are hoping to put semi permanent gazebo up, changed the shed position so it’s less visible plus we planted trees around the perimeter of our fence. The trees match other plantings.
We downsized from a large home to a unit down the road so we could stay in the area we loved. We asked the owner (who was chairman of the Committee) and the agent could we have a dog, could we put a shed, spa and a patio cover ? The answer was its yours you can do what you like. Two weeks after moving in (2/1/20) we had the unit painted and Windows cleaned replaced the appliances etc. I texted the BCM to ask if they would have the gardener tidy up the garden in front of our ground floor unit as it was very overgrown and we didn’t own a trailer. We were told that was the owners responsibility. So we hired a man to clean up and whilst in the middle of doing this received a call from BCM and told us there was a complaint that we were chopping down trees that were affecting the privacy of the unit above, plus we had a dog who barked incessantly and my husband’s smoking was a problem for them as they couldn’t hang out their washing on the bedroom balcony.
We advised that we were clearing our the shrubs (Pepper Tree) and none reached the height of the 2nd flr. The owner was in Sydney and had received the call from her friend who was staying there. My husband approached the friend the next day and asked if he had a problem could he address it with us first and he denied any problem whilst patting our very small dog. We were advised to apply for the shed and the patio cover and dog, which we did. We had a visit from an owner who only uses his unit 3mts a year to see what we were doing and were told by another resident (renter) that her owner sent her a copy of the chairman of the committee email stating all the problems associated with out application. We talking with BCM she advised me to contact the chairman. After a few emails he said it would be 5 against 3 so far but would not offer any other suggestions or what particular items were in dispute. The meeting is in a week and I would like to know if alternates can be discussed at the EGM eg a gazebo, smaller shed however not the dog. Sorry this is so long winded I have read (probably should have looked into more throughly before we purchased but we do love it here) many articles and by laws re Exclusive Use areas but it all seems ambitious. Thank you
In the spirit of negotiation, perhaps the Committee instead of providing a blanket NO could provide another solution.
If the problem is that it is too visible from the street, perhaps it could be smaller which wouldn’t detract from the outward appearance of the property.
I would not know of any other plausible reason for the negative response, other than that it is too big and may not be attractive to would-be investors.
I would be interested to know if there was a mediation body out there which can resolve these disputes without going to a tribunal to challenge the by-law.
Hi LVC
We have received the following reply back from Frank Higginson, Hynes Legal:
It all comes back to reasonableness. Rather the pushing the committee to put forward a solution, you should. If that solution is reasonable in all of the circumstances (which is the nebulous grey area us lawyers usually play in) they cannot refuse it. If they do, that is where the Commissioner’s office comes in. You can freecall them on 1800 060 119 to have a chat too if you want. Their information service is designed for exactly your type of situation.