This article discusses managing maintenance when VIC owners deny their owners corporation.
Question: What can an owner do if other owners refuse to maintain common property or contribute to shared expenses in a small three-lot strata?
I am an owner in a three unit strata scheme. Two units share a common driveway, and the third has its own. The hedges along the shared driveway need regular trimming, but the other owners refuse to help maintain the common property or participate in meetings, claiming there is no owners corporation.
I have always done maintenance myself, and recently obtained three quotes to have the hedges professionally trimmed. The other owners refuse to pay. One owner argues that they shouldn’t contribute since they don’t use the driveway, and the owner says they can’t afford it. The owners also leave debris around and don’t maintain their gutters. While they eventually agreed to pay for insurance, that was a struggle.
I am considering paying for the hedge trimming myself, as I don’t want to cause conflict by taking the matter to VCAT. What are my options for resolving this situation?
Answer: Sometimes the needs to refer back to the legislative requirements and processes to achieve the required procedure or function.
An owners corporation (OC) should always seek to resolve issues by balancing the desired outcome, legislative requirements and practical implications for all aspects of its community.
This always begins with exhausting all avenues of communication within the community, the committee or all members for input, to try and resolve matters before costs and legalities are deployed that impact members or the community.
However, in some instances where this is unsuccessful, the OC will need to refer back to the legislative requirements and processes to achieve any required procedure or function.
Maintaining Common Property
It appears the other units refuse to maintain the common property and leave the task to you. Failing to maintain the common property can lead to damage and water drainage maintenance issues, such as clogged gutters. So the maintenance is necessary.
Functions of the Owners Corporation
We note the other owners do not want to engage in communal issues and refuse to believe there is an owners corporation and won’t have meetings.
First, we need to address the existence of the OC. Under the Sub Division Act, Section 27A, an OC is automatically created when a plan of subdivision containing common property is registered at Land Use Victoria.
Therefore, the owners corporation exists and its members do not have the option or discretion concerning its existence or their involvement in it. However, they may participate minimally, as many do. Still, as an owner or member, their obligations and responsibilities will continue regardless of their personal level of participation.
The second item to address is the functions of the OC.
Refer to the Owners Corporation Act 2006 (the Act), Part 2, Division 1, Functions & Powers of an Owners Corporation:
Section 4 (b) details that a primary function of an owners corporation is to repair and maintain common property.
Section 7 (5) of the Act details that your owners corporation, as a tier four owners corporation that consists of 3 to 9 occupiable lots and is not a services only OC.
Common Property Responsibilities
The shared driveway is common property, and we assume the garden is too, but you should check the Plan of Subdivision to ensure the plants in question are within the common property areas and not within private lots. This will determine who is responsible for maintaining the plants.
This section of the Act also details that an OC must carry out the functions of an Owners Corporation.
There is much to be done, and members will need to determine if they wish to carry out these functions or engage a professional manager.
Appointment and Delegation of Functions
Section 9 of the Act details that an OC has the power to appoint or employ a person or person/s to assist the OC in carrying out its functions.
As per Section 11, an OC is managed by or under the direction of the lot owners. However, subject to delegation or resolution at an AGM, the OC can delegate these powers to a manager, chairperson, secretary or lot owner.
So, the OC can consider self managing, or engaging a professional manager. It can consider engaging a gardener and, of course, funding any engagements it undertakes.
Annual General Meetings and Procedures
As per Division 2, Section 69, your OC is receiving and paying money for the insurance, so they should hold an Annual General Meetings (AGM).
AGMs are also required to meet your OC obligations under numerous other sections of the Act. Section 70 (d) empowers a lot owner to call a meeting in the absence of a committee or manager. Section 71 then sets out the agenda requirements for the AGM and Section 72, for giving notice for an AGM.
Check if the OC has previously held an. When you purchased the property, your documents should have included an OC Certificate, providing important information about your OC. Otherwise, you may also wish to consider Sections 66, 67 and 68 for “First Meetings of an OC”.
As always, it’s best to bring your fellow owners with you on your OC’s establishment journey by sharing this information with them.
This will empower them to understand the requirements and collectively and positively establish the functions of your OC.
Benefit Principle and Maintenance Costs
To this end, referring back to the original driveway garden maintenance, suggest that the OC considers Section 49, which relates to the benefit principle and the cost of repairs. Those lots that benefit from works carried out wholly or substantially for the benefit of one or some, but not all, of the lots affected by the OC pay more; so the two lots that access the driveway and its gardens share the driveway garden maintenance costs.
Hedley Gaudin
Australian Owners Corporation Management (AOCM)
E: [email protected]
P: 03 9863 9100
This post appears in Strata News #765.
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