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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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QA Air Conditioning Installation Rules


21 Jun 2022

Question: I installed two air conditioning units for my apartment without approval. The owners corporation has insisted I move the external units to an unworkable location. Can they insist on this?

 

I live in an 8 unit, 2 story apartment complex. I installed two external air conditioning units outside my unit on the first floor prior to owners corporation approval.

The owners corporation has stated they want me to move the external section of the air conditioner. The spot they have indicated is not a viable option as per various air conditioner technicians.

Can the OC reasonably request this change and prevent me from providing heating and cooling to my own unit?
 

Answer: We recommend you obtain one or two contractor’s reports to support your proposal.

 

The owners corporation model rules allow it to regulate the exterior appearance of a lot (even if it is private property). That said, an owner could obtain a written consent from the owners corporation to instal air conditional units and must not unreasonably withhold consent. We recommend you obtain one or two contractor’s reports to support your proposal. That would likely compel the owners corporation to favourably consider your proposal. We wish you luck with your consent application to the owners corporation.
 

Rochelle Castro
RC & Co Lawyers