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.
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.
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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