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[Whale]

Our Owners Corporation (O/C) is having having difficulties with the Tenants of one Lot who are regularly in Breach of By-Laws as a consequence of their regular domestic disputes, that have already resulted in damage to the Common Property and to the Personal Property of other Residents.

Over the past 3 months these Tenants have been spoken to (nicely) by another Executive Committee (EC) Member and myself, then issued with our Breach of By-Laws Advice letter, then served with a Notice to Comply under Sect. 45; and still the Breaches continue.

The Police and Ambulance have attended on three occasions (I have the Police Event Numbers), and so as Secretary, I contacted the absentee proprietor / landlord and his property manager with a request that they issue a 30 day Termination Notice to the Tenants, as their Tenancy Agreement is still within its fixed term.

That window of opportunity passed without any action by the landlord or his property manager, presumably because the Tenants are paying the rent.

So here's one for our Legal Experts:

As the Strata & Community Titles Division of the Consumer, Trader, and Tenancy Tribunal (CTTT) has in the past been proven quite useless in solving such matters, and as an Owners Corporation (O/C) is not a “person” under the Tenancy Division of the CTTT, and as on the last occasion that I checked, I was a “person”, I was contemplating making an Application for an Order under the Tenancy Division under Cl 187 1(a) of the NSW Residential Tenancies Act 2010 (the Act) to “restrain any action in breach of a tenancy agreement” by the tenants” – i.e. the Clause about compliance with By-Laws.

The Act doesn't include a definition for an “other person” who may make an Application to the CTTT under Cl 187 1(a), so I thought that I may give it a go.

Thoughts on this approach please, and any others that may provide an O/C with an effective avenue to manage dysfunctional tenants in circumstances where proprietor/landlords and their property managers (who are “persons” under the Act) will not act in any way that's contrary to their self-interest.  

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[clive2000]

A person who damages another's property negligently can be sued for damages, so likewise your owners corporation should be able to sue anyone who negligently damages the common property.

 

Also, section 44 provides effectively that the bylaws constitute a contract (covenant) between the OC, and individual owners and tenants. So technically, anyone who is bound by a bylaw and breaches it, is in breach of contract and can be sued for damages in say the Local Court (I understand that CTTT doesn't have jurisdiction over damages claims for breach of contract or negligence), although I have never seen section 44 used in such a manner. If section 44 could be enforced in this way, then there would be no need for notices to comply etc to be used, and the OC could sue the tenant directly.

 

Perhaps some of the lawyers could comment further.

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[Whale]

Thanks for those comments Clive, and although those Residents whose personal property was damaged are considering Civil Action against the perpetrators, our O/C is trying to “stretch” the traditional mechanisms, not necessarily venture into non-traditional ones; at least for an O/C.  

Apart from the costs of civil proceedings, even if our O/C was successful, we can't get blood from a (Centrelink) stone! 

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[Jimmy-T]

Your other option may be to get your EC to issue a Notice To Comply to the Landlord for their failure to ensure that their tenants observe by-laws.  A precedent has been set where landlords can be made accountable for their tenants' behaviour if they are made aware of it and choose to do nothing.  Have a go. 

Or you could try getting a noise abatement order at the District Court against the tenants. That has a bit more heft – it's a criminal offence to breach it.

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[Whale]

I'm not sure about issuing a Notice to Comply to an absentee owner, but in any case, after I pointed out to the owner that these violent incidents by his current tenants would need to be disclosed to any prospective future tenants under the provisions of the NSW Strata Schemes Management Regulation (2010), he saw the merit in instructing his Property Manager to issue a 14 day Notice of Termination to his tenants, and they departed after 3 days!!

Back to my original query though — can a member of an E/C (a person) as opposed to the O/C (a non-person) make an Application to the Tenancy Division of the CTTT for an Order under Cl 187 1(a) of the NSW Residential Tenancies Act 2010 (the Act) to “restrain any action in breach of a tenancy agreement” by tenants”?

My O/C and no doubt others really need some sound advice here, because right now, and in the absence of cooperation from Landlords and their Property Managers, O/C's have little real ability to effectively manage poorly behaving tenants. 

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[FlatChatFan]

Usually where there is domestic violence there is a victim and a perpetrator.  Often the victim believes that they “deserve” the abuse they receive.

If there are children, the perpetrator will often threaten to kill the children if the victim tries to leave. Sometimes the violence escalates to murder.

In your situation Whale, if there is a victim, that person probably believes that the police are powerless seeing they have attended, yet the abuse continues. 

There are Refuges and services for victims, but usually they need someone to tell them they do not have to put up with the abuse and direct them to some options.  Social Workers at hospitals or Community Centres can help with advice. The front of a telephone directory gives Community organisations.

Once the victim is safe, then you seem to have enough evidence of damage, etc. to continue to remove the perpetrator.

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[Whale]

I seem to have lead some posters away from the core issue raised (probably my fault), and so to clarify, as E/C Secretary in our self-managed Plan I'm not concerned about the nature of disruptive incidents perse, but moreso about the actions that an O/C can take against residents (tenants) who are continually in Breach the Plan's By-Laws and the conditions of their Tenancy Agreements as a consequence of such incidents. 

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[Billen Ben]

Whale said:

Our Owners Corporation (O/C) is having having difficulties with the Tenants of one Lot who are regularly in Breach of By-Laws ………….

So here's one for our Legal Experts:

As the Strata & Community Titles Division of the Consumer, Trader, and Tenancy Tribunal (CTTT) has in the past been proven quite useless in solving such matters, ……………

Does the above mean your OC has tried to have the tenants fined for failure to comply with a notice to comply and been unsuccessful?

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[Whale]

Yes!

We’ve been to the Strata & Community Titles Division of the CTTT on two occasions.

On the first occasion we became entangled in the CTTT’s  passion for arbitration, whereupon the tenants agreed to comply with almost everything and upon their return did totally nothing.

On the second occasion, the matter was dismissed because the (different) tenants weren’t provided with a copy of our Plan’s By-Laws by their Agent; and this was despite the fact that the O/C had placed those and its customary “welcome” letter in the Unit’s letterbox just after the commencement of their tenancy, and the fact that everything was posted on the O/C’s Notice Board.

So on the next occasion that we experience poorly behaving tenants and our normal approach of trying to reason with them, then issuing a written Advice, then a Notice to Comply, and then by directly approaching our Proprietor/Landlord all fails to achieve resolution, then in the absence of any contrary advice it is our intention to have an E/C Member lodge an Application with the Tenancy Division of the CTTT seeking General Orders under the Residential Tenancies Act 2010 (Act) to restrain any breaches of the Agreement by the tenants (e.g. non compliance with By-Laws).

That Act restricts most such Applications to Tenants and Landlords, but it appears that General Orders can be sought by “other persons”, and as such “persons” are not defined in the Act, we thought that we’d give that approach a try, simply because it has more clout than anything that can be achieved under the Strata Schemes Management Act 1996, and because we have nothing to loose! 

I'll keep everyone posted (sorry!).  

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[Author]

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