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Owners’ Corporation Law - September 2017

31 Aug 2017

Check the balcony and terrace rules first

By Tom Bacon

In a recent VCAT decision, a lot owner in a Docklands building has been ordered to remove shade sails and a permanently-affixed clothesline from his terrace, in breach of the rules of the owners’ corporation (OC).

The shade sails were installed by the owner shortly after purchasing the lot. The owner claimed that the sails were to prevent cigarette butts, debris and glass from units above him striking the terrace and potentially causing injury and damage.

VCAT found, however, that the rules of the owners’ corporation were clear that permission was required from all relevant authorities such as the council and from the OC before the works to install the structures could proceed.

The OC and VCAT were concerned with the fact that other owners in the building that looked out on the shade sails might suffer an adverse amenity effect. Furthermore, the precedent effect was taken into account in that other owners might be emboldened to install their own structures should they be allowed to remain in place.

Accordingly, VCAT ordered the removal of the shade sails and clothesline forthwith.

The case raises an interesting question about a lot owner’s right to take proactive action to protect their lot (and seemingly themselves and their guests) from rubbish and debris falling from above. Ultimately, while there might be legitimate concerns about safety, the OC rules nevertheless prevail.

The lot owner made enquiries about his rights to install these structures prior to purchase with the OC manager and was told that he would not be able to proceed with the structures without a special resolution.

Ultimately the lot owner took his own view that the legislation and the rules did not apply to his situation and installed the additions regardless.

Indeed, all lot owners and owners’ corporations in Victoria should learn from this case, especially given the cost involved between these two parties from a three-day hearing with lawyers on both sides and with multiple witnesses being called to give evidence and be subject to cross examination.

VCAT found that the lot owner’s failure to take specialist independent legal advice prior to purchase counted against his position.

In addition, I would add that specialist building surveyor advice should also be provided as the interface between common property. Lot boundaries are difficult to determine and, indeed, the principles of interpretation for finding common property boundaries are uncertain and, frankly, are a dog’s breakfast. Other states and territories have clear and unambiguous statutory definitions of lot and common property boundaries. Legislators in Victoria – take note and take action.

Owners and potential purchasers need to be aware when deciding to live in ground floor or podium level apartments that there are massive risks from flying debris and rubbish from above. Unless there is a very widespread support from all owners to make changes to the common property (assuming that the architect of the building and the local council approve of the changes) then it is unlikely that much can be done for an owner or resident in this situation.

This VCAT decision confirms that invoking a self-help remedy to mitigate the risk of damage can also land you in hot water.

Remember – always check, check and check again.

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