Other owners corporation matters
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The impact of trespass to land and driveway obstruction by a motor vehicle may range from temporary nuisance to major disruption, and self-help mechanisms such as the attachment of wheel clamps, obstructing or otherwise detaining an offending vehicle or demanding payment for the release of that vehicle is an offence under the Road Safety Act 1986 (Vic) (‘RS Act’). The model rules also prohibit obstruction of common property.
Police, council officers and the owners corporation will not be involved with illegal parking on private land unless the offending vehicle is blocking a driveway and obstructing traffic. The local council can remove an abandoned vehicle on private land.
Parking in the private car space of another person presents difficulties. VicRoads will not provide the name of the registered owner on grounds of privacy. Though an owner or occupier may remove a trespassing vehicle from their property to a place within a reasonable distance from the subject land, such person(s) are liable for any damage to the vehicle or the possibility of charges for theft or interference with a vehicle under section 70 of the RS Act.
Other options include the installation of lockable metal barriers if the problem is frequent, or a notice placed on the vehicle that threatens legal action. Do not lift the windscreen wiper for fear of a claim of interference. Alternatively, commence proceedings in the Magistrates’ Court of Victoria. In such event, photographic evidence of the trespass and/or a witness is advised.
Before entering into a parking area agreement with the local council, an owners corporation should consider any costs, and the reliability of the council to efficiently enforce parking restrictions. This option is not available in certain controlled situations (e.g. underground parking).
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An owners corporation may dispose of goods abandoned on the common property under specified sections of the ACL&FTA.
Abandoned goods may be found in storage cupboards, carports, fire cupboards and exposed areas. The issue for the owners corporation is to locate the owner of the goods, deal with valuable items and remove items that have no value. The owners corporation is not responsible for goods left on private property.
All reasonable steps should be taken to identify the owner of the goods. Investigative steps include contacting police to determine if a vehicle is stolen or searching the Personal Property Securities Register on the Australian Securities and Investments Commission website (www.asic.gov.au) to ascertain if there is a security interest on identifiable property. If the goods belong to a lot owner, a notice specifying a removal period should be provided. An application to VCAT may be made for orders to deal with valuable goods including the destruction, sale and remittance of funds to the State Revenue Office under unclaimed revenue legislation.
All goods should be photographed. Dispose of goods that have no value. Advertise goods of value by placing a notice in a clear waterproof sleeve in a prominent location advising that the goods will be removed if not claimed within 14 days. Thereafter, store items in a protected location until VCAT determines the application.
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Approval for the installation of individual water meters is obtained by a majority vote of the owners corporation committee. Where a complex is served by one meter, the water authority often apportions charges equally among lots. The owners corporation may pass an ordinary resolution that consumption be levied according to lot liability. The water authority must be notified in writing and given the lot liability schedule (Water Act s 263A).
Any rainwater or other water that falls, occurs or flows on common property (otherwise than in a waterway or bore as defined in section 3(1) of the Water Act) is taken to be part of the common property. This grants the owners corporation permission to take or use the water.
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It is not generally appropriate for an owners corporation to lodge an objection to a planning permit, as that is not a function or power conferred by the OC Act (ss 4, 6). Ordinarily, an owners corporation will not have any proprietary interest that is adversely affected by a planning application.
However, if an owners corporation objects and the matter proceeds to VCAT, it is unlikely that the owners corporation would receive an adverse costs order. The VCAT Act (s 109(1)) makes it clear that there is a presumption that each party bears its own costs. VCAT may award costs if satisfied that it is fair to do so, considering the factors listed in section 109(3).
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Owners corporations have legal obligations under the Equal Opportunity Act 2010 (Vic) to address complaints of discrimination, sexual harassment or victimisation, and to take action to prevent their occurrence.
An owners corporation must make reasonable adjustments to allow a person with disability to access and use common property. An owners corporation must also make reasonable alterations on request and at their cost to meet special needs (s 56). Reinstatement provisions apply.
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Consider a dispute between a lot owner and the owners corporation about the ingress of water into the property of the lot owner. In this scenario, the parties may rely on expensive expert reports. If the owners corporation commissioned a report in the course of a VCAT proceeding, could the affected lot owner request a copy?
The owners corporation may oppose such a request by claiming legal professional privilege, a principle that confidentiality between a lawyer and their client outweighs the public interest of the court’s access to all the relevant material for decision. The High Court has stated that legal professional privilege is an important common law immunity that will not be taken to have been abrogated by statute in the absence of clear words or necessary implication to that effect.
As the OC Act does not abrogate legal professional privilege, it is clear that the report would be privileged. This may seem a unique situation given that the lot owner is a member of the owners corporation. It is submitted that this situation is no different to the relationship between a company and a shareholder.
The lot owner might seek an order under section 168(c) of the OC Act for exclusion from financial contribution.
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Communication (written or oral) about a person that lowers that person’s reputation in the eyes of the public, if untrue, may be defamatory. At any meeting of an owners corporation, lot owners may freely express legitimate concerns about the conduct of other lot owners or committee members, but they must not act in a malicious manner that is intended to ridicule and humiliate. Damages for improper conduct can be considerable.
Contacts
Consumer Affairs Victoria (CAV)
www.consumer.vic.gov.au
Victorian Civil and Administrative Tribunal (VCAT)
www.vcat.vic.gov.au
VCAT hears matters at venues in metropolitan and regional Victoria; see VCAT’s website for addresses.
Other owners corporation matters
Chapter: 6.5: Owners corporations
Contributor: Norman Mermelstein, Lawyer and REIV Accredited Owners Corporations Specialist, Law Ink, and Neville Sanders, REIV Accredited Owners Corporation Specialist, Whittles Australia
Current as of: 1 September 2024
Law Handbook Page: 545
Next Section: 6.6: Community organisations
