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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 Selling Common Property - One Owner Says No

18 May 2022

Question: Our owners corporation would like to sell some common property. One owner out of 8 says “no”. Can we proceed?

I own a unit in a block of 8. There is a block of land at the end which is owned by our block. The land is worth about $200,000, so each owner’s stake is $25,000.

Seven owners would like to sell the block, but every time the matter is raised one owner votes “no”. She owns the unit next to the block and has moved her fence in order to use some of the block for her garden. She doesn’t want anything built next to her.

Is a vote of 7/8 enough to be able to sell? Can we force her to move her fence back to its original position?

Answer: Like every case, it would come down to evidence about what the proper value is and what other amenity type issues there are


Well, I think two things arise out of that. One is the plan amendment and the other is the notion of the fence.
Dealing with those separately, factually It sounds very much like the Butten v Khung & Ors (Real Property) [2010] VCAT 252 or the ‘ALDI’ example* where most owners want to sell but one person doesn’t. This isn’t a circumstance where they lose Title. I’d imagine that this parcel is common property that can be carved out and disposed of. It very much looks like it’s the ‘ALDI’ example if that’s the case.

If you get a fair purchase price the tribunal would require some evidence that the sale value has some relationship with proper realisable value. That would deal with the economic best interest.

As far as the social best interest goes, well I suppose the sole lot owner’s arguments are going to be probably more planning arguments such as:

·         overshadowing
·         overlooking
·         and the proximity of any construction that might occur

Those would have to be balanced out, so this case, like every case, would come down to evidence about what the proper value is and what other amenity type issues there are. It looks pretty similar to the ‘ALDI’ example on its general principles.

In regards to the fence, it’s of course common where owners abutting parts of common property see them as their fiefdom and that they can use them as their own and fence them off, etc. It’s a plain breach of the model rules. Whether or not you’re owners corporation has registered rules, I don’t know but you probably don’t need them. The model rules make it clear that an owner or occupier must not obstruct other owners and occupiers or lawful interests from their ability to access common property so that fence can be removed apropos a rule breach.

*Refer to Tim Graham’s recently recorded VIC Webinar: How to alter your plan of subdivision

Tim Graham
Bugden Allen Graham Lawyers