This article about what to do if you suspect a meth lab or other illegal acts occurring in an apartment has been supplied by Chris Irons, Hynes Legal.
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- QUESTION: I purchased a property that settled last month. Yesterday I was informed that the previous owners daughter was living in the unit and “cooking ice”. I’ve ordered meth tests, if it comes back as positive what are my options? Who is Responsible?
- QUESTION: A lot owner’s visitors vandalise the common property pool by ‘pooing’ in the garden. What recourse does Committee have?
- ARTICLE: What to do About A Meth Lab or Other Illegal Acts in Apartments
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Question: I purchased a property that settled last month. Yesterday I was informed that the previous owners daughter was living in the unit and “cooking ice”. I’ve ordered meth tests, if it comes back as positive what are my options? Who is Responsible?
I purchased a property that settled last month. Yesterday I was informed that the previous owners daughter was living in the unit and “cooking ice”. The realtor says she was unaware, but the owners and body Corp were definitely aware as complaints had been lodged. I’ve ordered meth tests, if it comes back as positive what are my options? Does body Corp have a responsibility to ensure the property poses no health risks?
Any information or insight would be greatly appreciated. I am distraught to find that I purchased a property that might have serious contamination.
Answer: From the body corporate perspective, there is a right to what’s known as an ‘implied warranty’ under section 223 of the Body Corporate and Community Management Act 1997. This section provides, amongst other things, that the seller warrants that there ‘are no latent or patent defects…’
I can understand why you’d be distraught.
I’m interested to know how you’ve become aware of complaints. Did you find that out by looking at body corporate records? If not, then I’d suggest you do that anyway as there might be other matters of interest to you in them.
In Queensland, real estate transactions are generally based on the ‘buyer beware’ concept. That said, there are definitely obligations on both real estate agents and owners. From the body corporate perspective, there is a right to what’s known as an ‘implied warranty’ under section 223 of the Body Corporate and Community Management Act 1997. This section provides, amongst other things, that the seller warrants that there ‘are no latent or patent defects…’ and that, to the seller’s knowledge, ‘there are no actual, contingent or expected liabilities…’. Both of these obligations are framed in terms of body corporate responsibilities.
So, while it’s impossible to say to you at this stage that you definitely have a case in this regard, or in any other context, I do recommend that you seek qualified legal advice about your options, bearing in mind the above.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #444.
Question: A lot owner’s visitors vandalise the common property pool by ‘pooing’ in the garden. What recourse does Committee have?
Resident teenager of Owner regularly brings in “friends” to swim. The resident goes home & leaves his “friends” to play in the pool. “friends” then vandalise pool by “pooing” in garden.
What recourse does Committee have?
Answer: The recourse is to call the Police. Not everything which occurs in a body corporate is a body corporate problem to deal with.
The recourse is to call the Police. Not everything which occurs in a body corporate is a body corporate problem to deal with.
If you want to make it a body corporate problem, I’d suggest speaking to the owners to make sure they know what is going on. If the teenager lives there with the owner then you can enforce by-laws or nuisance provisions against them as an occupier.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #402.
What to do About A Meth Lab or Other Illegal Acts in Apartments
Meth Labs in Apartments
In strata world, there is a lot of prescriptive legislation about what to do in given situations. Even so, there are still plenty of circumstances in which the best course of action isn’t immediately clear – or comes with some undesirable consequences.
Case in point: a lot (or common property, for that matter) being used to do something illegal, such as running a meth lab.
Bearing all this in mind, if you are an owner, occupier, committee member, manager, caretaker or indeed, anyone else for that matter, it raises the issue of what to do if you suspect meth use or production is occurring. Anyone who has ever heard me speak at a seminar or read one of my articles would know that I am a big proponent of getting in and resolving problems early and preferably in person. For example, knocking on the door to another lot and having a discussion with that occupier.
In this case, though, I would definitely not be recommending that. As you’d see from the links above, there are some significant and dangerous risks involved with meth labs and meth use. Your role in a body corporate should never extend to putting your personal safety at risk. Nor should it ever involve things which are (or potentially are) criminal. Those are matters for the police and they are the ones who should be contacted if there’s a concern about meth use or production.
Another example I can cite from my time as Queensland’s Commissioner for Body Corporate and Community Management is people allegedly smoking pot and particularly so if they’re smoking it on a balcony. This type of enquiry would come to the 1800 free call number of the Commissioner’s Office on a semi-regular basis, with the caller asking what they could (or should) do about it. The answer is more or less the same as my discussion about meth above – if something illegal seems to be happening, it’s a police matter. Or, put in more blunt terms, just because something is happening in a body corporate doesn’t make it something for the body corporate to address. Nor does it necessarily make it a problem to be addressed through body corporate processes. In the pot-smoking example, while it is possible that that could be addressed through the nuisance provisions of the Body Corporate and Community Management Act 1997 in a similar way to disputes about smoking in general, it’s still something best directed to police in the first instance. Particularly if the pot use comes with other undesirable activity, such as violence or the threat of violence.
I know that there is sometimes a reluctance to get involved in situations where there might be something illegal going on and that’s understandable. Then again, if the body corporate committee is aware, or at least reasonably suspicious, that something is going on which shouldn’t be and they don’t do anything about it, this could raise some issues further down the track. There might be implications for insurance, for example. Or, if the illegal activity is having an impact on common property, the body corporate would have to deal with that eventually.
When it comes to tenants, in particular, there is a requirement that if a lease of six months or more takes place that the details of this tenancy must be provided to the body corporate. This is a means by which a body corporate can exercise some oversight about what is going on at a scheme and particularly if there is a situation involving a tenant and some potentially illegal activity. There is also the option of using the body corporate roll to contact the owner of that lot to get them aware of what is going on. If the owner resides interstate or overseas, it’s quite possible they would have no idea but would, if notified, be very motivated to do something about the situation.
If there is a suspicion of illegal activity the temptation might be there to install CCTV. Before doing so, either an owner or a body corporate should take the time to read this fact sheet prepared by the Office of the Commissioner for Body Corporate and Community Management and with the input of the Queensland Police Service. The fact sheet lists some of the considerations and obligations which go with CCTV. Another issue to be aware of is that if CCTV is installed on common property then any footage from that may be a body corporate record and thus, able to be accessed by an ‘interested person’.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #325.
If you have a question about illegal acts occurring in your apartment or something to add about meth labs in apartments, please leave a comment below.
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Hi,
I purchased a property that settled last month. Yesterday I was informed that the previous owners daughter was living in the unit and “cooking ice”. The realtor says she was unaware, but the owners and body Corp were definitely aware as complaints had been lodged. I’ve ordered meth tests, if it comes back as positive what are my options? Does body Corp have a responsibility to ensure the property poses no health risks?
Any information or insight would be greatly appreciated. I am distraught to find that I purchased a property that might have serious contamination.
Hi Tara
Chris Irons from Hynes Legal has responded to your comment in the article above.
Tony Query to STRATA re AGM
Our AGM is due July 13 next. Quite a number of new By-Law motions are noted in the Agenda including approval of a new CMS for the Exclusive Use by the 19 Apartment Owners who took possession of their new Garages because the last CMS was registered in 2002 for our old Garages! The By-Law changes for the new Exclusive Use areas of new Garages include the Chairs’ renumbering numerically to coincide with the Lot #ing.
This change of Garage numbering has been decided by the Chairperson even ignoring advice of our Committee’s Solicitors who told her to use the Developers registered Lot # Plan. I expect as Treasurer, that I will be unable to make any comments concerning some aspects of the Chairs new numbering system because after being in the new Garages for the last 14months, there are only two Owners who will now have to swap Garages so the Chairs numeral numbering # co-exist with their Lot #ing i.e. (1-19). This means that myself in my Lot 10 which is renumbered by Chair #1- and another person who is Lot 1 is now in Chairs #10.
We both would rather keep our Lot # Garage anyway. However, all Owners must now have corresponding numeral # and Garage # according to Chairs new CMS even though we have been in our correct Lot Garage according to the Developers registered Plan # for the past 14 months and have been quite happy taking up our Lot # Garage Is there any way that I can guarantee a chance to speak to Owners who do attend the AGM to explain the unreasonable situation which perhaps some Owners are not aware of?.
Hi Anthony
This article should assist:
QLD: Q&A AGMs, Motions in Strata and the Obligation to Act
Hi Chris
Great article! Thank you for this information.
From an insurance perspective Strata Insurance Solutions haven’t personally had claims related to Meth whether it be a claim for contamination or consequential damage (such as fire).
We have however called a few of our major insurers to get their perspective on claims.
1. Contamination: The first issue with contamination is whether it does or does not fit the definition of “sudden & accidental damage” which is the insuring clause the policy holder must prima facie demonstrate for a claim to be considered. There seems to be mixed feedback coming from insurers as to their interpretation of this. Secondly, another factor insurers will consider is whether the contamination is or is not deemed safe – if it is deemed unsafe, the lot owner has higher prospects of a successful claim;
2. Consequential Damage (Fire): Fire damage caused by a tenants meth lab in our view does meet the insuring clause of “sudden & accidental damage”. Knowledge of meth labs can be a factor that can be considered in a claim – for example if the body corporate were aware of the issue and did not report it to appropriate authorities there could be potential issues with the body corporate failing in their duty to take reasonable steps to prevent damage to the property which may be a condition in the insurers policy.
The key take away points from my discussions with insurers is take reasonable action to report concerns about illegal activities and properly document this (such as keep a copy of the police report number) and don’t rely on the insurance policy automatically covering all losses resulting from meth labs – insurers consider such claims on a case by case basis.
Tyrone Shandiman
Strata Insurance Solutions
[email protected]
1300 554 165
http://www.stratainsurancesolutions.com.au
This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.
Hi Tyrone
We’ve received this response from Chris Irons, Hynes Legal:
Thanks for your comments Tyrone. They’re really useful points and reinforce the need for bodies corporate, but also individuals, to follow methodical processes when situations arise.
As we’re finding out with COVID-19, it really is the only way forward when there isn’t explicit guidance in legislation or elsewhere.
Is It illegal to have a Still & manufacture Ethanol for the production of Spirits? Is this approaching anywhwere near the seriousness of Meth Production
My neighbour who is also the BC Secretary is engaging in this practice & is also in breach of the ByLaws by ‘storing a toxic & flamable substance’ namely the Ethanol While I am not sure if hes selling it, I know that he uses it in exchange for favours.
I am pretty sure he does not have a licence for it as he claims he doesnt need one (I am aware that one is required from the ATO). I am also aware that he uses a gas burner for production & it is enclosed in a shed during production. I am concerned about explosion
I have had unsatisfactory responses from both Council & the QRFS & I am not sure if I have inquired from the Police yet., I dont know hhat to do. I have not told anyone else yet.
What can be done about it. What steps should be taken. Is this approaching anywhwere near the seriousness of Meth Production
This response from Chris Irons, Hynes Legal:
Hello Kenneth, I can’t comment on the legalities or otherwise of ethanol production.
What I can comment on is that if a body corporate must enforce its by-laws. The fact the owner in question is on the committee doesn’t change that. There are conflict of interest provisions which apply to committee meetings. Your option now is to request the body corporate enforce its by-laws if it doesn’t do so itself. There is a quite prescriptive process for that to occur. If that doesn’t happen, there are further options available to you to pursue it.
None of this prevents you from taking your own steps with other regulatory agencies about the issue. I note, for example, you say you’ve gotten advice from the Tax Office, which might mean you can pursue the issue with them. You might also like to enquire with the Queensland Police Service, as you suggest.
Just on your comment of ‘not telling anyone’ – it’s possible other owners have noticed already and taken their own steps. Regardless, you’re now aware of something which might be risky to you and others, so I’d suggest you need to have a think about whether it’s a good idea or not to keep that to yourself. Put another way: if you were your neighbour, would you want to know about it?