Owners Corporation Disputes – Common Property

Any building that is administered by an Owners Corporation (OC) will have areas of the premises that are common property. With the increase in Owners Corporation residency, there has been a noticeable rise in disputes over matters such as the use of the common property.

Pursuant to section 3 of the Owners Corporations Act 2006 (OC Act):

  • Common property means land shown as common property on a plan of subdivision or a plan of strata or cluster subdivision.

This land may include features such as gardens, lifts, carparks, driveways, barbeques, walking passages, pools and rooftops.

The single feature of common property is that it is not registered at the Land Titles office or as owned by any one person or group of persons. It is proportionately owned by the Lot Owners of the OC.

Occasionally disputes may arise as the common property is open for use by all members of an OC.

Pursuant to Section 4 of the OC Act, it is the Owners Corporation’s responsibility to:

  • Manage and administer the common property; and
  • Repair and maintain the common property.

Management of the common property under Section 46 of the OC Act states that an OC must undertake repairs and maintenance within the common property including chattels, fixtures, fittings and services related to the common property or its enjoyment.

Owners Corporation Rules

Pursuant to Section 138(1) of the OC Act, each OC should adhere to rules that govern the full function of the OC.

Polices that apply to common property include:

  • Lot Owners may not prevent access for enjoyment by other people entitled to use of the common property;
  • Personal property on common property may not be stored unless advised; and
  • Painting and or modifying common property without prior agreed upon permission.

Furthermore, rules include:

  • No animals allowed unattended in common property; and
  • No children allowed in the pools under the age of 16 years unless supervised.

It should be noted that the rules of an OC are not permanent – per Section 96 of the OC Act:

  • A special resolution is required to make, amend or revoke the rules of the Owners Corporation.

Pursuant to Section 96, in order to pass a special resolution, 75% of the Lot Owners must vote in favour of the resolution to make, amend or revoke the rules of the OC.

Access to Common Property

Within the framework of the OC Act, Lot Owners proportionally own the common property, however, the management of the common property remains the responsibility of the OC. In some circumstances Lot Owners have the authority to access to the Common Property (e.g. rooftops, gymnasiums of pool areas).

It is noted that to enact a restriction of common property, the process should follow firm guidelines under the OC Act or as defined in the stated OC rules.

Dispute Resolution

Section 9 of the OC Act deals with the Dispute Resolution within an OC.

Pursuant to Section 152 of the OC Act, any dispute or complaint that is to be submitted (in relation to any aspect of an OC and not only common property) must be:

  • About an alleged breach of the Rules and/or Regulations;
  • In writing in the approved form;
  • Provided to the Respondent upon request; and
  • Not relate to personal injury.

Following the complaint submission, the OC must determine whether to take action in relation to the dispute and/or issue a Notice to Rectify Breach.

A Notice to Rectify Breach must:

  • Give notice of the allegation to the person alleged to have committed the breach;
  • Offer 28 days after the date of the Notice to Rectify Breach; and
  • Be in writing in the approved form.

Unremedied Breaches

If the Notice to Rectify Breach remains unremedied, the OC can issue a final notice which must:

  • Be in writing in the approved form;  and
  • Be within 28 days after the date of the Notice to Rectify Breach.

If the breach is not rectified within 28 days, the owner’s corporation can apply to the Victorian Civil & Administrative Tribunal (VCAT) for an order seeking the rectification of the breach.

Our Services

If you believe you have had access to your common property unfairly restricted, or that your OC has not followed the proper guidelines of the OC Act, our professional team at Oldham Construction Lawyers are able to advise you on your entitlements and rights.

If you are unsure of your obligations and need further advice, please do not hesitate to call our Director, Daniel Oldham on (03) 9640 0002, or via email info@oclawyers.com.au.

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