Victorian Lot Owners are wonders what to do about neighbours who take over common property without approval.
Table of Contents:
- QUESTION: An owner has claimed common property as their own, erecting fences and sheds etc. How can stop this and get them to return the common property to its original state?
- 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.
Question: An owner has claimed common property as their own, erecting fences and sheds etc. How can stop this and get them to return the common property to its original state?
A lot owner in our strata community has claimed a section of common property for themselves. So far they have erected a fence around this area of common property, removed a clothesline, laid a concrete floor, erected a shed and they are now preparing to install a veggie garden.
They have been told several times that they are not allowed to use the common property like this, however they have ignored the requests to stop.
We don’t want them to keep the common property, or approve their use of it and allow them to continue to use it through a lease agreement. They have claimed the only green grass area that the children in our scheme have to play on.
What are the steps we can follow to get them to stop using common property as if it is their own and return it to its original state.
Answer: Either threaten legal action or lodge a case in VCAT
The OC has only 2 options:
- Either threaten legal action (through a solicitor) or
- Lodge a case in VCAT.
There is really no other way if the owner will not co-operate with the below requests from the other lot owners wanting to reclaim the common area that was unlawfully obtained.
This post appears in Strata News #446.
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.
This post appears in Strata News #320.
Have a question about a neighbour taking over common property or something to add to the article? Leave a comment below.
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.
- VIC: What’s yours and what‘s common property?
- VIC: Q&A What is the Process for Buying or Leasing Common Property
- VIC: Q&A Expenses Recovery and Benefits of Common Property
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