Strata FAQ – Property

One interesting problem that many strata buildings face is the lack of safe and suitable common property areas for children to play in. Whilst many larger strata communities are being designed with award winning play facilities for children, most smaller buildings and city buildings are not designed with child’s play in mind.

Indeed, recent studies show that young families with children are a rapidly growing sector of occupants of strata titled property.

Children can create difficulties for neighbours when playing in common areas such as stairwells and car parks due to noise and the possibility of accidents or damage to common property. This can become a source of tension between residents and create divide in your community.

By-laws in some states provide that children must not play on common property or inside the building unless supervised by an adult, although such by-laws, even if prescribed by state government, probably breach Commonwealth laws about discrimination.

It is best if committees can define suitable play areas for children and provide appropriatere sources and space for this activity. This is again a great opportunity to provide your community with suitable guidelines for the occupants whilst maximising resident enjoyment for all.

Communities have a particular duty of care towards children. Swimming pools and other dangerous areas require special attention to avoid liability. We believe that even with minimal facilities, strata buildings can create a great community for their children residents by having an attitude of kindness, thought and care.

In a strata community, where water is centrally metered and paid by the owner’s corporation,water usage is a critical issue in keeping levies down.

There are several things you can do to save water on the common property. These can include installing water tanks to catch water off the roof for watering common property gardens and lawns and fitting water efficient taps to common property outlets. Even just fixing a dripping tap will make a difference to your bill and the environment. An executive committee can make all these decisions without too much trouble.

The problem comes when you try to impose water efficiency standards within lots. Recent studies show 39% of all water used and metered for payment by the owner’s corporation isused by lot owners in taking showers. By-laws for short showers are not likely to be popular or upheld. You might however consider a by-law to compel the installation of water efficient taps and shower heads. Such a by-law hasn’t been tested in the courts yet but given the owners corporation is paying for the water, there is a case that the compulsory installation of water efficient shower heads and taps has a sufficient nexus with the common property and shared facilities as to enliven the by-law making power.

In terms of drains, each lot owner or occupant owes the others a duty not to do anything that might cause a blockage. Conduct inconsistent with this duty will be a breach of the by-laws not to damage common property and not to do anything that causes an interference with the use and enjoyment of common property by others. Providing good information about what sort of things can cause problems and how this may result in wasteful spending of common funds is good practice.

Swimming pools on common property attract a responsibility to users and neighbours to ensure they are adequately kept and fenced to guard against dangers for local children. Each state and territory has its own laws about swimming pool safety. A well-known example of poor swimming pool management involved the owners of a motel who were held liable for a breach of safety legislation when a 13-year-old boy was electrocuted while trespassing and using the pool at night with his mate. Despite being a known offender, the owners were held liable when the boy stepped on an exposed pool filter wire when retrieving a ball,he and his mate were throwing in the pool.

Managing water in the urban context is not without its problems and care needs to be taken to ensure it is used wisely and safely

Trespass occurs when someone comes onto your property without permission and refuses to leave when you ask him or her to do so. In a strata scheme this is most likely to happen when somebody parks in a car park space, which is on title or the subject of aright ofexclusive use.

In a townhouse complex, throwing objects into a neighbour’s yard, allowing fruit or branches to fall from a tree into a neighbour’s yard, or leaving rubble or waste on a neighbour’s yard could constitute trespass. Allowing a pet onto a neighbour’s property could also be considered trespass.

Legal Entry

On some occasions, entering another person’s land without permission is legal. Implied entries are permissible e.g. a salesman or a friend. Express entries are permissible e.g. if you hold a garage sale. In all states and territories, a body corporate or owners corporation has express entry provisions upon notice and without notice in circumstances of urgency.

Duty of Care to Trespassers

All occupiers have a duty of care to anyone who comes onto their property including trespassers on the grounds of ‘common humanity’

Each state and territory has legislation regarding tree disputes and if necessary, these laws should be referenced in an attempt to resolve an issue. This note looks at the common law and offers some common sense on the topic.

1. Careful consideration should to be taken when making decisions about planting trees and plants, dependent on the type and placement. For example, a rubber plant’s root system will seek out pipes and drains wherever it can to ensure access to a sufficient water supply. By-laws about what can be planted and where can assist Owners Corporations in managing the appropriate planting of trees and plants.
2. Council approval is not required to plant a tree, however you may need approval to remove one. Check tree preservation orders in your local council before arranging the removal of any trees on or around your property. Also confirm your scheme has adequate insurance prior to scheduling works of this nature.
3. Local councils are responsible for trees and plants on pavements, grass verges and nature strips. Contact your local council should there be an issue within these areas. Advising the correct authority will see the resolution of any issues with trees and plants actioned sooner rather than later.
4. Branches and roots from a neighbour’s tree can be pruned with the material returned to the relevant owner’s property, but again be careful of preservation orders. In cases like this, it is recommended you speak with your neighbour about the intrusion of branches and roots prior to pruning, as they may not be aware of the problem and will likely assist in resolving the issue.
5. The common law of nuisance applies to physical land or buildings but does not include the right to sunlight or an unobstructed view. In some places, including Sydney, there is legislation which relates to hedges obstructing views.
6. For more information on neighbourhood dispute resolution, visitwww.complaintline.com.au

It’s unsightly, it’s a health hazard, it can be a safety hazard and it smells. Rubbish belongs in a personal rubbish bin or a communal skip. However, rather than using a dedicated rubbish receptacle, it’s unfortunate that, on occasion offenders dispose of rubbish on common property. For the other strata scheme members this can be a relatively annoying situation.

Dumping of rubbish on common property is prohibited by law.According to the legislation, if an owner or resident of a strata scheme has a legitimate reason to leave items on common property then they must have received advance approval from the owners corporation in order to do so. So,plan ahead and seek permission as early as possible, to allow time to prepare for alternative options if the owners corporation deny your request.

It is a good idea to alert the owners corporation so that they can document the incident. It may be difficult to identify the offender but at least if a similar situation arises in the future, there will be a record of indiscretion. The owners corporation or Property Manager can also issue a notice that reminds strata scheme members that placing rubbish on common property is against the by-laws of the scheme.

If you have a building manager, be sure to alert them to the situation. The manager can then arrange either the local council or a rubbish contractor to collect the material. If the rubbish is light enough, the building manager could notify your cleaner to take the appropriate steps

Series: Solving Neighbourhood Problems

Part 12 of 12: Police and Neighbourhood Matters

Unit owners sometimes forget that just because they live in a high-rise or town house complex with a body corporate/owner’s corporation, that the police are still there to protect them just as if they lived in a freestanding house.

If you have reason to suspect or witness a disturbance or a suspected crime, you have the ability to call the local police for immediate action and are probably better off doing this than calling the strata manager. The police will want to know your name, address and phone number.This will remain confidential and not revealed to your neighbour unless charges are laid and you are needed as a witness.

If you see or suspect a crime–

• Call 000 and stay calm, report what you have seen or heard and give your address.
• If you suspect your home has been entered, do not go in, the intruders may still be inside–call the police from your neighbour’s place or from your mobile phone.
• If you see a suspicious vehicle in your neighbour’s car space, take down the registration number, colour and make of vehicle and call your neighbour.
• If you hear a burglar alarm, call your neighbour to see if it is a false alarm and if you get no answer call the police.
• If a stranger comes to your door claiming to represent a company or service, ask for ID or call the organisation they claim to represent.
• If you are in danger and need help, yell ‘fire’ rather than ‘help’–police say people respond more willingly to ‘fire’.

Strata managers should allow police access to records or information if investigating a crime.Police will need a warrant to enter a lot.

In any dealings with the police, get the name and number of the officer you speak with and ask for a copy of any statement you make.

Nothing demonstrates the new four levels of government better than this issue. The Common wealth provides funding for roads of a national significance,state transport authorities have overall responsibility for roads and traffic management of all substantial roads including freeways, toll-ways, highways and major residential roads, the local authority will look after all other public residential roads within their local area and strata communities, the new fourth level of government are responsible for roads within their schemes.

This responsibility brings with it all of the responsibilities for maintenance, injuries and liability for maintaining the roads and footpaths that you might expect of higher authorities. For owners corporations, there is a statutory obligation to repair and maintain common property driveways.A pothole or subsiding path is the equivalent of concrete cancer.

The future costs of repairing these internal scheme roadways are often overlooked by developers and real estate agents when selling lots. In the same way that a building should progressively save for the repair and replacement of its common property, even a town house scheme with internal roadways should make provision.

Regulating traffic on these roads is also the responsibility of the strata community. Proper notices about speed limits and safety measures are required as is a degree of pro-activity and consistency in policing habitual offenders of speed limits and safety measures. Reasonable rules and by-laws will help.

Parking on common property is always problematic. Clear rules and rules for the management of visitor parking bays can be effective. Some owners corporations enter in private parking agreements with councils who police these matters and may impose fines as a deterrent to repeat offenders.

In dealing with parking problems and abandoned vehicles, generally speaking, the police and local authorities will not become involved while the vehicle is on scheme land unless the vehicle has been reported a being stolen. If a vehicle is parked within a lot and not on common property,this is a matter for the lot owner and not the owners corporation to deal with.

In the war against parking, the more drastic step of pursuing a trespasser in the tribunal or court may be required to send an emphatic message that the rules will be enforced.

This is an issue on which local laws are all important

Noise is perhaps the most common complaint relating to strata living, particularly from those moving from large freestanding houses.

In the quest for a simpler life, people forget that their apartment might be on top of a Belgian beer hall and noise is likely from such an establishment.

Here are the top 10 tips for managing noise complaints:

1. The first step is to talk before you write. The offender may not be aware of the level of noise or the impact on the strata community;
2. Speak to your strata manager, they will be able to assist with By-laws and rules of owners corporations and advise regarding regulation;
3. Local council and Environmental Protection Authority will have rules about how much noise and the times at which certain noise can be made;
4. If the 3 steps have not worked, it would be prudent to keep a ‘noise diary’ that describes the type of noise, the time it occurred and the way in which it has interfered with your lifestyle;
5. Noise disturbance need not necessarily be loud. Vibrations or persistent sounds that disturb you unreasonably will be subject to regulation;
6. Police will have authority to issue noise abatement directions;
7. Local authorities will have noise control powers in relation to animals;
8. Local councils will regulate air conditioning and swimming pool noise and conditions.Similarly,owners of defective alarms can be fined;
9. Before you commence proceedings for noise abatement you may need an acoustic engineer’s report;
10. See tip no. 1–nothing will destroy a community faster than vitriolic correspondence about noise. A measured personal response to the maker of the noise, made after you have calmed down, will be the best solution

There was a time, not that long ago, when bullying was regarded as a schoolyard matter and generally not taken that seriously, except by the victim. Fortunately, those times have changed and bullying; and its close cousins, harassment, violence and discrimination; are major issues for the community and the corporate sector. They are also major issues for strata communities.

The nature of the duties of a strata community to its lot owners will depend largely on the wording of statutory provisions in various places and the obligation on an owners corporation to enforce its by-laws. For example, a body corporate in Queensland has a duty to act reasonably but no such express duty exists in New South Wales although it may be implied.Similarly, there is no express duty on a New South Wales owners corporation to enforce its own by-laws although such express by-laws exist elsewhere.

A special obligation rests with owners corporations in relation to harassment, violence and discrimination against people working on the common property. These duties arise under workplace health and safety legislation, various discrimination laws and the applicable criminal law.

According to legislation, any action which causes another person physical harm or to fear they are going to be harmed, is considered an assault. Actual striking or hitting someone is called battery. If allegations of assault or battery are made to an owners corporation, the matter should be referred to the police immediately.

If a worker has been attacked or threatened,they can apply for an apprehended violence order(AVO) that prohibits the person named on the order from coming near them in any way. A person who breaks an AVO can be arrested immediately. A strata community may need to assist employees in obtaining an AVO if one of their members is causing the actual or threatened harm. This may be appropriate in addition to any enforcement action under the by-laws although an AVO will be far more immediate and effective than by-law enforcement.

Owners corporations also need to be aware of threats of harassment or unfair treatment because of a person’s sex (including pregnancy), race, age, marital status, sexual orientation,trans-gender status or because a of a disability. As between owners these matters may not concern the owners corporation but if such conduct is playing out on common property, or involving employees or contractors of the owners corporation, the situation is otherwise and may involve not only the police but also state and federal human rights authorities.

With the exception of noise, dividing fences are the source of most neighbourhood disputes. State legislation covers the rules for working out who pays for the dividing fences and what happens if there are disputes about where the boundary lies. These laws apply to owners corporations and bodies corporate.

Basic Principle

The Dividing Fences Act 1991 (NSW)provides that adjoining owners are required to share equally the cost of a “sufficient dividing fence”. If there is a dispute about the standard of fencing, one neighbour must give the other a fencing notice and disputes are heard in the local court. Mediation by a community justice centre is likely to be cheaper and less stressful.

What is a“sufficient dividing fence”?

In deciding what is a sufficient dividing fence, the court will take into account the following:•

• The standard of the existing fence;•
• The purpose of the fence;•
• The way the land on either side of the fence is used;•
• The privacy or other concerns of each neighbour; and•
• The kind of dividing fence that is usual in the area.

The basic principles of this act are reflected in other state based dividing fences legislation including the Dividing Fences Act 1953 (QLD),Fences Act 1968 (VIC),Common Boundaries Act 1981 (ACT)-the main difference is the issue of crown liability for dividing fences.

Who Pays?

The general rules provide for neighbours to equally share the cost. However, if one neighbour wants a fence of a greater standard than a “sufficient dividing fence”, then that neighbour will have to pay for the additional cost involved.

Boundary Disputes

If there is a dispute about the boundary line, then the act provides for this to be determined by a registered surveyor.

Encroachments

Encroachments (where buildings cross the boundary) are covered by the Encroachment of Buildings Act 1922. These are complicated cases, which can involve applications to the Supreme Court.

Avoiding Disputes

To avoid disputes about fences and boundaries, an owners corporation or body corporate needs to act reasonably and should take care to keep notes and written correspondence about the essential elements of the fencing proposition.Certainly,a neighbour who goes ahead and constructs a fence without first consulting and coming to an agreement with the other neighbour, might not be able to recover half of the costs.

The community justice centres in New South Wales provide an excellent service in providing assistance to parties without the necessity of involving lawyers

As buildings age, particularly those that have had their repairs and maintenance neglected,strata communities might choose to redevelop all or part of the building to comply with Fire Orderand/or to ensure they remain functional and relevant in the current market. Knowledge of building and development process is required.

Similarly, when a neighbour is proposing a new building or a lot owner wants to complete structural work, the building and development process becomes relevant to strata community life. While each state and territory has their own building and development legislative regimes,the process is generally the same:

1. Environmental plans set out the guidelines for development in a local area (watch for new plans in your area as everyone has the opportunity to have a say before they are finalised);
2. The general rule is that development approval is required from your local authority to erect,structurally alter, or demolish any building, including outhouses and sheds. Excavations and painting of heritage-listed properties also needs approval. Just because works do not require council approval, strata approval is likely to still be required if the work involves an addition to common property;
3. The subdivision of excess land also requires a development approval;
4. High impact development applications will require advertising to the nearby community and objections might be lodged on the grounds of effecting views, overshadowing, privacy,encroachments, noise, possible parking problems and changing the street scape/character of the neighbourhood. Additionally, if you are going up another level or two, the set back of the new floor will be relevant to the way the building looks from below.
5. Development approvals can cost up to $200,000 for major works because they require full-scale drawings and an array of expert reports. Council and relevant government approvals can take nine to 18 months to acquire depending on the level of objections and the complexity of the issues. If building and development work is being undertaken to comply with Fire Orders temporary measures may need to be taken to protect the safety of occupants and visitors; and
6. The owners corporation is required to consent to any development approval application but the consent to lodging the application does not stop the owners from objecting to the application.

Good consultants attuned to the special needs of strata communities can be of assistance,whether you are the applicant or the objector