A Victorian Lot Owner wonders what to do about a neighbour who has taken over the common property garden without approval. Alex Smale, Owners Corporation Manager at The Knight suggests the best solution would be to using a key safe.
Question: The minority lot owner in a three lot scheme has progressively taken over the common property garden with pots and garden furniture. No approval was sought.
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We own 2 units and 74% of a small (3 unit) Owners Corporation Plan in Victoria. The 26% lot owner has progressively taken over half of the common area courtyard with over 40 pots in various stages of neglect, a market umbrella and garden furniture.
We have the standard Model Rule that states:
“An owner or occupier of a lot must not, without the written approval of the OC, use for his or her own purposes as a garden any portion of the common property.”
No approval has been sought or given. What are the majority owners’ rights?
Answer: The minority lot owner is in breach of several Model Rules
The minority lot owner is in breach of several Model Rules. This includes 4.3 Damage to common property & 4.1 Use of common property:
- Model Rule 4.3 (1): An owner or occupier of a lot must not damage or alter the common property without the written approval of the owners corporation.
- Model Rule 4.1 (1): An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.
- Model Rule 4.1 (2): An owner or occupier of a lot must not, without the written approval of the owners corporation, use for the owner or occupier’s own purposes as a garden any portion of the common property.
They are also in breach of part 7, section 130 of the Owners Corporation Act which states that a lot owner must not use or neglect the common property in a manner that is likely to cause damage or deterioration to the common property.
We suggest you approach the other lot owner with your concerns and request they remove their items from the common property. If they refuse to remove the items, you may complete a formal complaint against the lot owner which references the rules and legislation quoted above. This form can be found on the Consumer Affairs site: Owners corporation complaint form.
Once this form is lodged with the Owners Corporation, you will go through the grievance procedure outlined in the Model Rules. The parties to the dispute must meet and discuss the matter within 14 working days of receipt of the complaint. If the dispute is not resolved at this meeting, you can take further action under Part 10: Dispute Resolution of the Owners Corporation Act and the Owners Corporation can issue a notice to rectify breach on the lot owner.
The breach notice would give the owner 28 days to rectify the breach. If they fail to do so another final notice to rectify may then be issued. If the breach is not rectified after the final breach notice expires, the Owners Corporation may then apply to VCAT for an order requiring the breach be rectified.
Have a question about a neighbour taking over common property or something to add to the article? Leave a comment below.
This post appears in Strata News #320.
Alex Smale
Owners Corporation Manager
The Knight
Email
This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.
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Your answer to this question, about an owner “taking over the common property gardens” is badly deficient in so many ways. There were multiple questions which first ought to have been asked about the history of the common property in question before it was ever concluded these neighbours were the ones in violation.
In a mirror image to that “takeover’, here in the Perth area, WA, in a 24 unit multi level strata complex, we as Owners, were faced with a miserable group of Owners, almost none who actually deigned to live on premises, that had all but abandoned the complex. As long as their rent cheques still arrived, they did not care. They even refused to elect an Owners Council, leaving the place to be badly administered by a negligent strata management company (Redacted by ADMIN) who never set foot on the property during this time. Nor had any Owners as far as we knew. Abandoned.
Returning from overseas, appalled at the state affairs, mainly a destroyed reticulation system and stolen and dead common property gardens, we set about restoring the place to its former glory at our own expense. Only then did the other Owners awaken to elect a Council and thwart our efforts, not to IMPROVE but to RESTORE.
Two successful challenges later against the Owners Council, at the State Adminstrative Tribunal for their unlawful (WA Strata Titles Act 1985) efforts to obstruct our restoration, we now have the place looking like it did previously.
The Owners Council tried throwing the very same allegations against us as you cited in your answer. However, with no evidence to support their false claims, they were laughed out of SAT.
They wanted to destroy a perfectly healthy tree, without consulting the Corporation for its advice, consent or spending authority, that even their own expert arborist in his report stated was a healthy specimen. ( )
I would be wary of a one-size-fits-all answer to these issues, and dig a little bit into the background first.