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Strata communities generally have either a formal committee, or at least a group of active residents who take on the task of resolving problems that invariably occur in their Owners Corporation. If the strata complex does not have an experienced strata specialist in place, problems can arise if the owners’ committee can not (or will not) agree to deal effectively with such problems.
Unfortunately it is a fact of life that complaints can occur, and managers and committees must have policies and procedures in place to manage and resolve such complaints and disputes.
Disputes within an Owners Corporation are far more common than many people realise. Complaints occur for a number of reasons, most generally involving vehicle parking and noise, however it is impossible to predict the issues that can arise and cause problems. And when nobody is prepared to act to resolve the problem… it generally escalates. This is where the experience and skills of a strata specialist can be invaluable in calming the situation and ensuring that the needs of all residents are heard and communicated .
A strata specialist will initially recommend that basic communication is common sense. Sometimes residents who fail to obey the rules sometimes simply do not know the rules. As a starting point, your committee should ensure that all lot owners and tenants are provided a copy of the Owners Corporation rules. As a follow-up, the committee should encourage neighbours to talk about their concerns to resolve disputes.
If this strategy fails, then the strata specialist will know how to take communication to the next step, which can be arranging for mediation or conciliation, made in good faith by all parties, or if all else fails, applying to VCAT to make a legally binding decision about how the dispute is to be settled.

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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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QA New Victoria Legislation - No Change for Sellers

18 May 2022

Question: Do the changes to Victoria legislation make reference to OCs where owners are interested in selling their block. Is there a new percentage of owners who need to agree to the sale?

Answer: It’s ignored completely, there’s no change.

Unfortunately, no. In my opening I made the point that I thought there were a lot of missed opportunities in this legislation, and that’s one of them. They’ve gone into so much detail about contracts, the disclosure of any beneficial relationship on the part of the manager, if you’re going to receive a commission or other benefit. There’s just so much regulation and proscription tied up in those things, which is really not necessary because again, there’s a dearth of cases where that’s ever occurred.

Philosophically, I will say that government is informed by the government department, which is Consumer Affairs and Consumer Affairs is the entity that receives consumer complaints. So it’s looking at it from bottom up, not top down, unfortunately. That’s what drives policy.

Anyway, back to the direct question. It was completely ignored as were a lot of other things that really should have been considered – important issues. There are a lot of distractions in this legislation about minor or superfluous nugatory points. We had the model of New South Wales went in at 75% five years ago. There are different regimes around the world. Everywhere is trending towards something less than unanimous and it just didn’t get mentioned. It’s ignored completely, there’s no change unfortunately. I’m very critical of that, if that is not already palpably obvious.

But you do have VCAT. So in the same way that VCAT can order the amendment of a plan in an unanimous resolution, the same applies to termination of an Owners Corporation. I’ve got one running at the minute that I’ll be able to report on one day hopefully (if we win of course).

VCAT is there and can make that order. Unfortunately, legislation ignored it, and it’s lamentable that it did so.

Tim Graham
Bugden Allen Graham Lawyers