Possibly one of the biggest things that causes a lot of angst in the people living in a strata complex is when others either residing or visiting, do things that impeach or impact upon them directly for example leaving unwanted items in a common area, visitors’ cars long overstaying their welcome in the designated car parks or just leaving stuff lying around. I’m joined by David Sachs of Sachs Gerace Broome Lawyers.
Dan: David, if a lot owner occupy keeps leaving stuff at the common property, what can the owners corporations do.
David: Well, I think what most people think that the temptation that most people come up with is just to go and throw things down and that’s a silly again mistake because if somebody leaves something on your property, it doesn’t necessarily means that they intend to dispose of it. So if you take possession of somebody else’s property even if it has been left on your land then you become what lawyers called a bailee of that property which means that you’ve got some responsibilities towards it. And putting it in very simple terms, you’ve got to look after it properly at least for a reasonable period. And if you don’t do that, you take it all into the bin and you can be responsible for the cost of replacing those goods.
Dan: What is it common example, David then? Is it rubbish.
David: Ah, look if people are leaving out rubbish then perhaps the problem that I’m talking about is not so much of a problem after all. It’s just a garbage bag or something like that could be thrown out. But often people will store things on landings. They’ll leave bags, shoes and cricket bats and some things like that people want to keep out the clutter of their own homes. Look a really common problem that perhaps these people leave bicycles in all sorts of places, they lean them against walls down in garages or carports or they leave them in corridors. That’s really a common problem that comes up.
Dan: So what does the owners corporation do in this respect.
David: Well, I think one thing that in order to set the ground rules about what expectations beyond this corporation has. The best answer is there is a detail bylaw that the always what the owners corporation is going to do about stuff that are being left on common property. They need to, they can set rules about what is that where people can leave things and what the, where people can’t leave things and what consequences will be if people leave things in areas where they are not allowed to leave them. So if the bylaw deals with, let’s say for example, leaving laundry in a common laundry room where there are still places where they have been like that or leaving bikes in corridors if that’s very clear about that then the owners corporation can use the regulatory powers under the bylaws in order to I guess, control the consequences of what they can be.
Dan: And then in the cases of rubbish generally if an occupier moves out and leaves rubbish behind or other articles for example on a locked property or common property, what can they do themselves?
David: Well if that’s really a vexed problem. Even if left within a locked then, let’s say, let’s speak a typical example if a tenant who moves out and leaves an unwanted piece of furniture behind. If they leave that furniture in the locked property then it’s not a problem for the owners corporation, it’s a problem for the lot owner. So the lot owner at that point takes possession of property which they don’t owned and they need to be able to look after that for a time and if the parting tenant leaves stuff on common property not that they will do that because it’s a kind of lazy way of dealing with this, they don’t want to affect their landlord by leaving on the lot because they might not be able to get their bond back, they leave it on the common property then the owners corporation doesn’t have the benefit of a bond and they might not know the person and doesn’t know where they are going and so it can be a convenient way of disposing its stuff. But the owners corporation cannot immediately throw the stuff out. What they need to do is make some reasonable attempt to locate where the parting tenant has gone and that would be to make an enquiry of the lot owner and also to perhaps write to an address they’ve given if they got anything or even put a notice on the goods that are left there. And that can be to the effect that if they are not removed within a relatively short period of time, couple of days, you know, a week really depends on what the stuff is. Then the owners corporation will treat them as being abandoned and then will dispose of them.
Dan: I’m assuming that it is pretty common place would have been quite frequently.
David: Yes, it is common place because it’s a sort of, it’s a thing that kind of aggravates people and then you know, anyway it just plays into people’s natural laziness and deferring their problems to someone who can’t, you know, immediately deal with them.
Dan: And then the temptations of course would be to throw their stuff out.
David: That’s what most people do 95% of the time, it’s kind of the answer and the consequences that never materialised. There are examples, I certainly dealt with these cases where owners corporations have decided to dispose of goods that have been left on common properties in store rooms inappropriately. Just to pick an example, that can be garbage rooms and garbage rooms that might be commercial garbage rooms and you’ve got an owners corporation which has shared it, it’s a split title, it’s a strata scheme, it’s a commercial area and a residential area, often they are designated commercial garbage area just because they produce more garbage but then the commercial lot owners will often use that as a storage area too so that they might store redundant coffee machines, fridges or they might store drinks or whatever it might be there. I recently had a case where the owners corporation took a breach of that and then threw everything out and then ended up being sued for 30,000 dollars for the cost of the stuff they thrown out and they issued notices as well but the notices had not been sent to the right people and effectively they end up the actual owner’s of the goods wasn’t aware of the objection from the owners corporation. And they lost all their stuff which was taken to the tip and they ended up suing and recovering their money.
Dan: The other big one would be when a stranger leaves behind a motor vehicle, you know, in a visitor’s parking spot for example. What recourse can be done on that respect?
David: Cars are probably the major problem that we’ve, the owners corporation has to be witty and the answers unfortunately are fairly slim. One thing that the owners corporation can definitely do is have a bylaw that regulates use of car spaces, particularly visitors parking spaces. And that at least sets clear ground rules that can be explained to lot owners in the way they direct their friends or relatives or trades people or other people about using visitors parking spaces. The problem does arise when people come in and park on in car spaces that are allocated to a particular lot because that would be a trespass, that is property that is owned by a particular lot owner. And that’s just be like somebody’s parking their car in the drive way of your home and you can call the police. That’s a pretty clear example of a trespass. And the police can come and remove it. But if people are repeatedly breaching or repeatedly parking in visitors parking areas, the police officially very often too get involved in doing that, in removing vehicles. That’s quite a lot of work that needs to be done to interview people or investigate it for a relatively uncertain result. If the vehicle is abandoned in common property and it might happen from time to time. Somebody just wants to dump a car or a car is stole and then it’s just left there, then that can be reported to the police or the local council and after requisite notices are issued then the council can come in, remove it as remove the vehicle as abandoned vehicle or the police can come and remove the vehicle as an abandoned vehicle.
But if you’ve got in your unit lot, there’s, you know, a woman who lives there and her boyfriend that comes over all the time and he’s parking his vehicle in the visitors parking spot and he ends up just leaving it there, it can be a vexed problem. A person who’s currently sees a visitor visiting the lot owner and what’s the owners corporation going to do, you can’t fine the visitor. He is not the lot owner. He is not a resident there. And he himself is not susceptible to the bylaws and if you want to prosecute if you like the lot owner whom he’s visiting, she’s not the one parking the vehicle and it’s not her vehicle. So…
Dan: It’s quite vexed, isn’t it.
David: It’s a real problem. And the thing that people need to be aware of is that you can’t clamp tyres, you can’t clamp people’s wheels, so obviously you can’t go and scratch people’s vehicle or so block the main or do damage. It happens all the time. People get very frustrated about that, that is causing damage to somebody else’s property. You can take some practical measures such as putting up bollards. For example those things that people cannot physically park their vehicles in the visitors parking spot unless they can get access to a key. Somebody wants to administer that then of course that’s a possible solution.
Dan: It sounds like it’s not too much that can be done in this regard even if you know, you’re insuring that there is a bylaw. It’s not going to be water high enough to prevent or have a jurisdiction on all issues that might arise from the visitor using the visitors car parking spot.
David: Exactly but look the answer really is I think, not in direct action but more in indirect action. I think, look, people can think about bylaws as being rules that needs to be policed. And if you’re looking at it, if you’re trying to deal with this problem with that mindset then it will be unsatisfactory because the reality is that there will be little policing power that can be authorized by bylaws. But if you treat your bylaws as being a set of rules that regulate or make it clear what the expectations are for lot owners within a particular strata scheme then it can work. You know the vast majority of the people who are happy to abide by these rules. It can be a very clear expression of what’s expected. If things are unclear, how people can use visitors parking space then you can hardly blame someone who uses a visitors parking place for a visit, visitor or a frequent visitor when there is no rules that say you can’t do that. That would be my response. Why, why can’t I park here on a visitor when there’s no rules against it? I’m using this in a legitimate way.
Dan: Very true.
David: There are bylaws that we prepared them frequently here but make it clear about what the rules are or about using visitors spaces and how things can be left on what things can be left on common property. And when the rules are set up like that, then lot owners actually understand what needs to be done. A simple answer to a problem about bikes being left in corridors outside of units used to have a proper bike rack and bike storage area in the garage. And it’ll be the owners corporations resolve to put that in and accompanying that passes a bylaw that says people can’t park or leave their bikes in corridors but must use the bike storage rack, then that’s a good practical solution. You may not be able to find someone who leave their bikes in the corridors but at least you’ve got an alternative. You should expect that the problem over time will go away.
Dan: These bylaws that you’ve just said are fundamental aren’t they.
David: Bylaws are fundamental and really it’s really on your starting point when you’re looking at the Strata Scheme Management Act. They’ve got just some elementary bylaws there but there are some really, real drafts that are particular bylaws that deal with particular issues in strata scheme. They’re just go. And they do help people a lot in being able to ensure the strata scheme runs the way that the people who live there wanted them to run. There is always be speedy acts credit problems and probably the best thing if you’ve got a lawyer on hand who you can contact and make an enquiry about what can we do we’ve got this particular problem. Lawyers that are experienced with strata will be able to answer those fairly quickly. And while the solutions to unwanted goods left on common property might not be something that can be dealt with in the next 5 minutes at least, you can get some advice. You can get some letters drafted or some guidance that will enable you to solve the problem within the next week or two. And then, the problems gone, not immediately but at least quickly.
Dan: Thank you David for joining me.
David Ok, thanks.