Victorian Lot Owners are wonders what to do about neighbours who take over common property without approval.
Table of Contents:
- QUESTION: A commercial lot in our apartment complex has been running hot and noisy electrical equipment in a car park space. The owners corporation is aware but has not taken action. The Council will not assist. What can we do?
- QUESTION: All lot owners on my floor wish to brighten up the hallway. How do we obtain permission?
- QUESTION: Is a lot owner entitled to keep their garbage bins on common property outside their premises?
- 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: A commercial lot in our apartment complex has been running hot and noisy electrical equipment in a car park space. The owners corporation is aware but has not taken action. The Council will not assist. What can we do?
I live in an apartment complex with a commercial premise on the ground floor.
The commercial lot has been running equipment such as a refrigerator, AC unit and exhaust fans in the car park space. The owners corporation is aware of the situation but has taken no action.
The parking space where the equipment is placed is not marked on the strata plan. Also, they have been running high-noise exhaust fans 24/7. The AC unit emits hot air. The potential risk of fire has been ignored.
We’ve approached our local Council. The Council said, “Go to the planning team.” The planning team said, “Talk to the owner corporation,” as it’s a private matter. How do we deal with this situation?
Answer: The answer depends on whether the offending items are in common property or private lot property.
The answer depends on whether the offending items are in common property or private lot property. If common property, are the items there pursuant to a lease or implied easement?
Ultimately, if the items are there lawfully, if they create a nuisance, there may be an action against the party. They may also be in breach of the owners corporations rules, depending on what rules have been adopted. If the Model Rules apply, an owner or occupier must not unreasonably create any noise likely to interfere with the peaceful enjoyment of any other person entitled to use the common property. However, that rule does not apply if the owners corporation has given written permission for the noise to be made.
As for fire risks, that is a matter for the owners corporation (and their insurer) and the Council to take action if appropriate. If the owners corporation considers it not to be an issue, then providing they are acting in good faith and the best interests of the owners corporation, that would not be compelled to take further action.
Phillip Leaman Tisher Liner FC Law E: ocenquiry@tlfc.com.au P: 03 8600 9370
This post appears in Strata News #691.
Question: All lot owners on my floor wish to brighten up the hallway. How do we obtain permission?
All of the owners on my floor in our apartment complex want to brighten up the corridor. We would like to put up some photos of Melbourne in the hall.
We all agree we are happy to take responsibility for the photos, ensuring that if the walls are damaged we agree to repair.
How do we get this approved from the committee?
Answer: The residents need to obtain a licence for the unexclusive use of the common property hall.
Hanging photos on the common property hall with the residents being responsible for the photos and rectification of any damage to the walls, require that the residents obtain a licence for the unexclusive use of the common property hall.
The Owners Corporation could only grant a special resolution by either holding a general meeting or issuing a ballot to all owners that must achieve at least 75% favourable votes from the owners to approve the licence, pursuant to section 96 of the Owners Corporations Act 2006.
Alternatively, the residents could donate or lend the photos to the Owners Corporation. In that circumstance, the committee could decide, at their discretion, whether or not to hang the photos on the common property hall. In this regard, a special resolution is not required, but the residents would not be given an opportunity to make any determination on whether the photos will be hung on the common property hall.
Rochelle Castro RC & Co Lawyers E: law@rccolawyers.com P: 1300 072 626
This post appears in the August 2021 edition of The VIC Strata Magazine.
Question: Is a lot owner entitled to keep their garbage bins on common property outside their premises?
Answer: A Lot owner is not entitled to keep their bins on common property. They may however be allowed to if the Owners Corporation provides approval.
Gregor Evans The Knight Email P: 03 9509 3144
This post appears in Strata News #486.
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 requests from the other lot owners wanting to reclaim the common area that was unlawfully obtained.
Guy Garreffa StrataPoint E: guy@stratapoint.com.au P: (03) 8726 9962
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.
Alex Smale The Knight Email
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.
EmbedThis 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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