Victorian Lot Owners are wonders what to do about neighbours who take over common property without approval.
Table of Contents:
- 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: 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: [email protected]
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: [email protected]
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.
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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I live in a set of 4 BC Units in Melbourne.
1. All the common areas were maintained well however DHHS has a tenant in the front unit and DHHS do no maintenance or their tenant. The state of the property effects the first impression of all the others and is lowering the value. Can the common ground areas maintenance be paid for and charged to owners under BC fees?
2. A owner occupier has moved into another unit the reason they bought the property was stated as it was maintained well in the common grounds area. Since they have moved in they have refused to have funds allocated to maintain the common grounds and the whole property is run down, dead plants and overgrown. It will now involve a large cost to bring it back to any acceptable standard. Does a new owner have to maintain the purchased standard (pictures are available) and if the annual general meeting is run by an
property manager agent should they not be using their chair vote to ensure standard.
I live in a 4 unit strata in Melbourne. I have just received an email saying that our courtyards are common property and that we need to lease them. Can they do this? And if so who exactly are we leasing them from? Ourselves? How can I challenge this?
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.