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Owners’ Corporation Law - September 2014

03 Sep 2014

Enforcing rules and achieving compliance

Owners’ corporations and committees have enough on their plate in maintaining common property and attending to the financial management of the building without getting involved in matters where owners and occupiers are breaching the rules of the owners corporation.

However, adopting a rigorous grievance process will at least ensure that only the most serious disputes will be unresolved and later ventilated at VCAT.

When advising owners’ corporations on these matters, if the offending involves a tenant or occupier of the unit, I advise owners’ corporations to issue a breach notice against both the owner and the tenant/occupier. Often, the owner (being a landlord) will have little or no idea that their tenant is causing grief to other residents within the building.

Most rules available to the owners’ corporation will use wording such as: “A lot owner or occupier must not, or must not cause to permit …” which gives an owners’ corporation the discretion to take enforcement action against either or both the owner and the tenant/occupier.

By issuing a breach notice to both parties, and offering to meet with the parties in a meeting with the grievance committee, it is usually the case that the owner will step in and regularise the matter before the meeting, either by taking steps to evict the tenant or making sufficient reparations on behalf.

There ought to be no place for warning letters or “quiet words” by the building manager in enforcing the rules of the owners’ corporation. Either there has been a breach or there has not. If the offending party can be positively identified, the owners’ corporation should always issue a breach notice, otherwise the offending party might conclude there are no consequences to their bad behaviour.

Other owners and residents have the right to live in their units and to traverse the common property without suffering acts of nuisance from other owners and residents. There ought to be no second chances given. Rules should be seen by all residents as no more than minimum community standards.

True enough, a person issued with a breach notice does not have to participate in or attend a grievance committee meeting, however if they breach the rules again, then a final breach notice ought to be issued straight away.

For recidivist offenders, sometimes the only way to enforce compliance is to burden them by taking their time away to attend meetings and tribunal proceedings, and in appropriate circumstances, ensuring that financial penalties in the form of VCAT fines are imposed against them.

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