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Topic
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Hi
A 63yo friend owns a villa in a 5 unit over 55 complex in NSW. She is the only owner-occupier of the 5 units. Until late last year all was fine, then a new owner purchased the neighbouring villa, installed a 43yo tenant through a real estate agent and then joined the executive committee (comprising two people) at the AGM.
My friend missed the AGM through illness and soon after queried how an owner could join the committee after openly breaching the over 55 legislation. The owner in question responded that she could have installed a 57yo friend who was a member of a jazz band but that it was best to “maintain the current status quo with the 43yo tenant”.
The strata manager and both executive committee members have documented their knowledge of the 43yo tenant living there however nothing has been done. The real estate agent in question would also presumably know about the breach.
The 43yo tenant and her visiting friends have now turned quite nasty towards my friend, with late night name calling, loud music with accompanying banging on internal walls and culminated recently with a friend of the tenant throwing a drink into my friend’s courtyard while yelling “wake up f%$#@! b!@#$%”. This was reported to the strata manager and my friend was advised by the landlord of the offending property that nothing could be done unless a formal police report was produced. My friend is reluctant to take this path due to potential repercussions.
Any advice on what to do in this situation would be greatly appreciated. The 43yo tenant is apparently moving out in 3-4 months, however my friend has indefinitely moved elsewhere out of fears for her safety after the recent harassment. I would have thought the strata managers / executive committee should have taken some form of action about both the over 55 issue and the harassment.
Thank you
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Replies
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Colt12 – Is your scheme a genuine ‘retirement village’ that is covered by the Retirement Villages Act 1999 and the Retirement Villages Regulations 2009, or it a ‘residential community’ where the Developer has used the over 55 angle as a marketing tool and has maybe created some ‘over 55’ community rules?
‘Residential community’ is the new name for residential parks, caravan parks and manufactured home estates where people live on a permanent basis.
Under the Residential (Land Lease) Communities Act 2013, residents can apply to NCAT to resolve a wide range of disputes including community rules disputes.
If your scheme is a ‘retirement village’ then some information from the NSW Office of Fair Trading is here:
https://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Retirement_villages.page
If your scheme is a retirement village then not all residents need to be over 55, but generally most residents are aged over 55. The key word is “retired“.
A retired person means a person who has reached the age of 55 years or has retired from full-time employment. The 43 year old in question may have “retired” from full time employment.
The definitions of who qualifies to live in a Retirement Village are here:
https://www.legislation.nsw.gov.au/#/view/act/1999/81/part1/sec5
NCAT can resolve disputes about retirement villages in NSW
Colt12 – My next question is: You stated that the property was restricted to those over 55 or those with a disability (i.e. a SEPP Seniors Living 2004 property) . Was the 43 year old tenant classified as having a disability?
A positive covenant under the Conveyancing Act 1919 [s88E] has been created over the land upon which your friend’s scheme sits by the State Environment Planning Policy (Housing for Seniors or People with a Disability) 2004. In this situation the purpose of the positive covenant is to place restrictions on the use of the land.
If the covenant conditions have been breached then your friend may be able to seek relief from the situation by writing to the Strata Manager stating that if the situation is not rectified immediately then your friend will exercise their rights under SSMA 2015 [s234]. This may be enough to make the SM and the committee do the right thing both now and into the future.
If it doesn’t, then your friend may need to apply to the Department of Planning and Environment and/or the council requesting that the DPE apply for an Order from NCAT to enforce the positive covenant. The relevant legislation is below:
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 234
Order enforcing positive covenant
234 Order enforcing positive covenant
(1) The Tribunal may, on application by an authority having the benefit of a positive covenant, order an owners corporation for or owner of a lot in a strata scheme to comply with an obligation imposed by the covenant and relating to the maintenance, use, repair or insurance of a building or lot in the scheme, if the Tribunal considers that the owners corporation or owner has failed to comply with the obligation.
(2) If the authority has been refused an injunction under section 88H of the Conveyancing Act 1919 , the Tribunal must not make an order to the same effect as the injunction refused.