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How to deal with smoking neighbours

There is nothing worse for non-smokers than inhaling the waft of second-hand smoke from someone’s cigarette. And it can seriously affect your lifestyle in apartment living, as well as your health.
 
Currently, Victorian laws only allow Owners Corporations to make rules that completely ban smoking in common areas such as shared courtyards. Smoke emanating from private property can be more difficult to control for the Owners Corporation.
 
As owners are still permitted to smoke on their private property and consequently, it can be difficult to rule against them even if their second-hand smoke is entering common property.
 
Notwithstanding, the Victorian Owners Corporation Regulations 2007 (Model Rule 1.1) stipulates “A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot”.
 
On that basis, your Owners Corporation Manager could reasonably assess that any smoke emanating from private property has exposed you to second-hand smoke, which represents a health hazard to you and therefore placing the other owner in breach of this regulation.
 
The best process is to try to raise this issue with your neighbour and come to a resolution amicably.
 
If this fails or is not possible, check that your Owners Corporation rules contain Model Rule 1.1, then you may lodge a formal complaint with the Owners Corporation in relation to their alleged breach of the Model Rules.
 
Your complaint should be on a Formal Complaint form and outline the alleged breach, noting that your health is being negatively impacted.
 
You may also request that your Owners Corporation creates a specific rule about smoking to be banned on Common Property. This will require a special resolution.

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5 Ways to Resolve Strata Parking Issues

Parking issues are part and parcel of strata living and management challenges.  These challenges may include the lack or misuse of parking spaces. 

The owners corporation could rely on its parking rules.  However, a rule is only useful if it is valid.  In other words, if a rule is found to be invalid, it is cannot be enforced.

There are recent media news that cover the NSW Supreme Court Appeal decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (Pet Case).  The Pet Case was a battle between the owners corporation and an owner, from the Tribunal to the Court Appeal where the owner ultimately succeeded in getting a declaration that the owners corporation’s rule to ban pets is invalid.

The Owners Corporations Act 2006 gives the owners corporation power to make rules (s138(1)).  However, that power is limited and categorized in Schedule 1 of the Act.  Particularly, Schedule 1.4.4.2 states that the owners corporation could make rules on matters relating to “vehicles and parking on common property”.

So, the owners corporation has the power to make rules on parking.  That power does not permit the owners corporation to make just any kind of rule on parking and it should avoid any issues that could repeat the findings in the Pet Case, that a parking rule is not valid and not capable of enforcement. 
For a parking rule to be capable of enforcement, the owners corporation must make sure that the rule contains the following 5 components of parking rules-

  1. aims to legally resolve current common property parking issues;
  2. relates to common parking spaces and common property use;
  3. does not select or isolate any resident or lot owner;
  4. must apply to all residents and owners;
  5. must be specific.
If creating or enforcing rules is not effective, here are the 5 commercial or practical ways that the owners corporation could resolve parking issues-
  1. install signages on common property (specifically state what can or cannot be done on the particular common parking space);
  2. install cctv cameras that record people’s behaviour on common property (monitors for evidence people’s behaviour whilst on common property);
  3. install fob system at the entrance of parking area so that only permitted parties could enter the parking area;
  4. write to all residents and owners encouraging them to install bollards in their private parking space to avoid unauthorized parties parking in their space;
  5. enter into an agreement with a towing company who will fully indemnify the owners corporation when vehicles are towed from the common parking area or an agreement with the local council to enforce private parking agreements (agreements will vary depending on Council operation).

Please do not hesitate to reach out to Rochelle Castro of RC & Co Lawyers if you require assistance on resolving parking issues – rochelle.castro@rccolawyers.com or 1300 072 626.

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How to approach rules made prior to the Owners Corporations Act 2006 commenced


11 Jul 2023

Owners Corporation Managers are often asked to advise on OC rules and to facilitate the dispute process.  Naturally, the first step is to review the rules.
 
All OCs have rules for the control, management, administration, use and enjoyment of common property and lots.
 
The purpose of rules is two-fold:
 

  • Prospective regulation of matters; and

 

  • Retrospective enforcement of breaches.

 
Model Rules are set out in Schedule 2 of the Owners Corporations Regulations 2018 (OC Regulations).  By default the Model Rules apply unless the OC makes its own Special Rules and records them with Land Victoria.
 
An OC may make Special Rules by passing a special resolution of 75% of the total votes for all lots affected by the OC.  To be valid and enforceable Special Rules must:
 
1. be for or with respect to a matter set out in Schedule 1 of the Owners Corporations Act 2006 (OC Act ) (section 138(1)); and
 
2. be for the purpose of the control, management, administration, use or enjoyment of the common property or a lot (section 138(3)).
 
There is power under Schedule 1 to make special rules relating to:
 

  • Health, safety and security

  • Committees and sub-committees

  • Management and administration

  • Use of common property

  • Lots

  • Design

  • Behaviour of persons

  • Dispute resolution

  • Notices and documents

  • Common seal

 
If a proposed Special Rule does not fall under one of these powers then the rule will be invalid and unenforceable by the OC.
 
But what if the rules were registered prior to the commencement of the OCA?
 
The Subdivision (Body Corporate) Regulations 2001 were gazetted under the Subdivision Act 1988.  Form 1 of the Schedule set out Model Rules which applied to all bodies corporate (as OCs were then known).
 
Additional to the Model Rules, Regulation 220(1) of those regulations stated:
 

(1)       By special resolution, the body corporate may make rules in addition to the rules applied under regulation 219.

 

There was no prescribed subject matter in respect to which additional rules could be made.  However, it was long been the law of Victoria that a rule can only be made in respect to subject matter’s within the rule-maker’s power.  In the arly 1930’s in Williams v City of Melbourne [1933] HCA 56 the High Court stated [Per Dixon J]:
 
Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
 
The OCA, including its transitional provisions, came into operation on 31st December 2006. The transitional provisions were contained in Schedule 2 of the OCA and relevantly provided:
 
5. Rules of body corporate
 
Any rules of a subdivision body corporate in force immediately before the commencement day, continue in force on and after that commencement and are deemed to be the rules of the owners corporation under the new Act to the extent that they are not inconsistent with the new Act or the regulations under the new Act.
 

In Sulomar v Owners Corporation No 1 PS511700W (Owners Corporations) [2016] VCAT 1502 (6 September 2016) the tribunal commented:

 

[19]  The power to make rules was conferred upon bodies corporate under regulation 220. However, the power was not an unfettered power to make any rule. The power to make rules was limited to the statutory purpose of the body corporate.
 
In other words, for a rule to be “saved” pursuant to the transitional provisions it must have been made validly in the first instance.  VCAT commented further in Sulomar:
 
[17]  Because the transitional provisions do not validate an otherwise invalid rule, it is not necessary to consider whether the rules could have been made under the OC Act. It is only necessary to consider the validity of the impugned rules under the Subdivision Act 1988.
 
And so, for a rule to be validly made under r.220(1) of the Subdivision (Body Corporate) Regulations 2001 it had to be within the statutory purpose of the body corporate (now owners corporation).
 
The Supreme Court described the "statutory purpose" test in Owners Corporation PS 501391P v Balcombe [2016] VSC 384 as follows:
 
First, it is necessary to determine the statutory object to be served by, and the ‘true nature and purpose’ (‘the Statutory Purpose’) of, the power to make regulations. The relevant inquiry as to the Statutory Purpose of the power is considered by reference to the scope, object and subject matter of the empowering Act.
 
Secondly, it is necessary to characterise the impugned regulation by reference to the circumstances in which it applies, in particular its operation and effect. The evidence of the circumstances in which the regulation will operate will enable the court to form a view about the nature and apparent purpose of the regulation; and the existence and dimensions of the actual or threatened mischief sought to be addressed by the impugned regulation.
 
Thirdly, ‘once armed with knowledge of these facts’, the court then makes its own assessment of:
 
(i) whether the connection between the likely operation of the regulation and the Statutory Purpose of the power is sufficiently direct and substantial; or
 
(ii) whether the regulation could not reasonably have been adopted as a means of attaining the Statutory Purpose, in which case it will be so lacking in reasonable proportionality as not to be a real exercise of the power
 
Consequently, for an Additional Rule to be validly made under the Subdivision (Body Corporate) Regulations 2001, and to be transitioned under the OCA, it needed to be made consistently with the body corporate’s functions or powers.  For ease of reference I set those out below:
 

201. Functions of bodies corporate

 

A body corporate has the following functions-

 

   (a)  to repair and maintain-

 

   (i)  the common property;

 

   (ii) the chattels, fixtures, fittings and services related to the common property or its enjoyment;

 

   (iii) the equipment and services for which an easement exists for the benefit of the land affected by the body corporate;

 

   (b)  to manage and administer the common property;

 

   (c)  to take out, maintain and pay premiums on insurance required or permitted by any Act or Division 4 of this Part and any other insurance the body corporate considers appropriate;

 

   (d)  to provide a certificate in accordance with Division 7 when requested;

 

   (e)  to take any action necessary or desirable to ensure that these Regulations and the rules of the body corporate are complied with;

 

   (f)  to carry out any other functions conferred on the body corporate by the Act, these Regulations or any other law.

 

202. Powers of bodies corporate

 

(1) A body corporate has all the powers that are necessary to enable it to perform its functions, including, but not limited to, the following powers-

 

   (a)  to set fees intended to cover general administration and maintenance, insurance and other recurrent obligations of the body corporate, based on lot liability and to determine the times for payment of these fees;

 

   (b)  to levy special fees or charges designed to cover extraordinary items of expenditure, based on lot liability;

 

   (c)  to acquire, hold and dispose of personal property for the use of members of the body corporate and the occupants of lots and the general public;

 

   (d)  to borrow, repay and invest money;

 

   (e)  to establish and operate any bank account consistent with current business practice;

 

   (f)  to appoint or employ persons to assist the body corporate in the performance of its functions;

 

   (g)  to provide services or to enter into agreements for the provision of services to members of the body corporate and the occupiers of lots;

 

   (h)  any other powers conferred on it by these Regulations or the rules of the body corporate.


Tim Graham
Bugden Allen Graham Lawyers