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  • #8666
    Whale
    Flatchatter

      I have a problem with the occupants of a permanently rented Unit in our Plan.

      The background is that the Unit has been rented to a person for the last six (6) years, and even though he’s the only Lessee shown on the Rental Agreement (now continuing) the person’s Son and his two (2) children have also been permanent residents of the Unit for at least 5½ years.

      Over the years, there have been a few disturbances always involving the Son and his estranged partner who visits the children infrequently, but these have generally resolved after approaches to the Lessee by another member of the Executive Committee (E/C) and me, so whilst the Owners Corporation (O/C) has issued its normal Breach of By-Laws Advice there’s never been any need to follow that up with a Notice to Comply.

      In early December 2012 the two (2) children were removed by Authorities, whereupon the Lessee also left and has not returned as of this day.

      So the Unit has since been occupied by the Son, who I assume doesn’t have a key to it or to the security entry as he enters via a rear window (ground floor) with the aid of a step ladder.

      The Son is regularly visited by female guests, and once he’s in the Unit he can admit them using the security intercom. These visits are very noisy and fuelled by alcohol and marijuana, and disputes invariably result which spill-out onto the Common Property from where any inquisitive residents have been loudly abused.

      Other residents are now complaining to me and more recently to the Police who have attended on a few occasions this month, with no long-lasting impacts on the behaviour of the Son and his regular (but different) guests whose disputes continue on an increasingly regular basis.

      On behalf of the O/C, I e-mailed the Owner / Landlord of the Unit in mid December to advise her of the fact that her tenant’s Son was in occupancy, that as he was entering the Unit via the window I assumed he may have been there illegally (squatting?), that on the basis of past experience the E/C was expecting problems, and to suggest that she contact her Property Manager to arrange an inspection.

      The Owner / Landlord replied to the O/C’s e-mail, and advised that there was only ever one person on the Lease, and that she was unaware of any of the other three (3) occupants; that was it, no response to the other issues raised or to the suggestion made!

      Over the past five (5) weeks I’m aware of seven (7) violent incidents and several visits by the Police (in response to complaints by our residents), and so again on behalf of the O/C I’ve e-mailed the Owner / Landlord on three (3) occasions to make her aware of what’s going on, to make her aware of the fact that she’s as responsible as the occupant/s of her Unit for Breaches of our Plan’s By-Laws, and to ask her to liaise with her Property Manager to get these occupant/s out of her Unit and off our Strata Plan; apart from read-receipts no responses at all have been received!

      So here’s my problem…..

      The Rental Agency (a large Franchise) whose Property Manager looks after the Unit has in the past taken the approach that as it has no business relationship with the O/C’s of Plans where it manages Units, it deals only with its Clients (Owner/Landlords) concerning Strata issues. That’s why I’ve been e-mailing the Owner / Landlord, who for reasons known only to herself is quite prepared to ignore the O/C’s e-mails and to let the current occupant/s remain.

      There’s little point in my opinion for the E/C to meet and resolve to issue a Notice to Comply, not only because this occupant and his guest/s won’t comply, but moreso because the O/C will just finish-up in Strata Mediation (again), when it’s very likely this occupant won’t attend, and where the O/C may then get the appropriate Orders if the “chocolate wheel” stops at that number, but which based on the occupant’s past attitude to Police directions will almost certainly be ignored.

      An O/C is not a “person” who can make an Application (for eviction) in the Tenancy Division of the CTTT, and neither the Owner / Landlord nor her Rental Agency is going to head down that path.

      All advice about how the O/C can resolve this will be greatly appreciated.

    Viewing 10 replies - 1 through 10 (of 10 total)
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    • #17691
      Austman
      Flatchatter

        I really feel for you in this unfortunate situation.  The owner is very irresponsible.  But I wonder who is paying the rent?

        I’ve found that if the EC makes the issue known to all other owners in the OC, it can get results.  But you need to be sure that the offending owner is aware that everyone in the OC is being informed of the situation and that if the matter goes to the CTTT all of their decisions are made public on the Australian Legal Information Institute’s database ( https://www.austlii.edu.au/form/search1.html?mask=au/cases/nsw/NSWCTTT ). 

        There are no privacy laws here – this is an OC matter and it is perfectly OK to inform the whole OC of the situation, of any EC correspondence on the matter and of any actions taken by the EC.

        My experience is that owners, when genuinely in the wrong,  wake up and finally do something when they realise that all other members of the OC know about the situation. They also don’t want to risk having a very accessible public record of the situation on the Australian Legal Information Institute’s data base.

        And if the owner still doesn’t  do anything then start the process that sees the matter go to the CTTT.

        I’m sure others here will offer advice too.

        #17707
        andyj
        Flatchatter

          Whale,

          Perhaps pointing out that provisions of s117 (1) (a) and (c) of the Strata Management Act to the offending owner and the suggestion of action at the CTTT may get some results.

          Section 117 (1) (a) and (c) states the following

          “An owner, mortgagee or covenant chargee in posession (whether in person or not), lessee or occupier of a lot must not:

          a) use or enjoy the lot, or permitt the lot to be used or enjoyed in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not) or by any other person ntitled to the use or enjoyment of the lot.

          c)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person ntitled to the use or enjoyment of the lot.”

          #17711
          Jimmy-T
          Keymaster

            So he enters by the window?  The window is common property.

            I’m thinking there might be an “OHS issue” here that required “immediate action to prevebt injury” – like spending a couple of hundred bucks on a joiner to board it up (once the squatter has gone out).

            I’m serious – just do it and deal with the legal/Fair Trading/CTTT fall-out later. 

            I’m thinking chummy might get the hint and go elsewhere.  What’s the worst that can happen – a rap on the knuckles from the CTTT? The rental agents can go whistle if they’re not prepared to take responsibility.  And once this is done I’d have them hunted out of the building too.

            It may not be the right thing to do and it probably isn’t the legal thing to do but I would do it.

            It’s your window, after all.

            The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
            #17713
            struggler
            Flatchatter

              Whale, what happened to the lessee?  Did he move out or has he just not been seen around?   I would be inclined to enquire about his whereabouts and to his well being considering what has been happening.  Something is just not right here.  Someone does not move out and continue paying rent unless he has won lotto.  If he was living in a unit with his son and his two kids he obviously didn’t have the financial means to pay the rent for them in the past.       

              Couldn’t you take action against the owner for the noise and disruption caused by her tenant, even though you know he actually isn’t there?  If the lease is still in the original name, can’t you send out notice to comply to this name and notice to the owner for their tenant to comply?  If the lessee doesn’t comply, and he couldn’t if he isn’t there, his lease could be broken?  

              Something not right with all this.  Why wouldn’t an owner be interested in their property?  Perhaps the tenants are known to her?  I feel there is more to this story.

              #17714
              Whale
              Flatchatter
              Chat-starter

                Thanks for the responses to date, and as an update….

                Austman – We’ve convened an Executive Committee Meeting to resolve to issue a Notice to Comply, and whilst the Agenda is posted on the Notice Board, I’ll now also e-mail a copy to all Proprietors; thanks.

                Andyj – On the basis of the Note to Part 4 which states “This Part contains provisions relating to the powers and duties of owners, mortgagees or covenant chargees in possession of lots, lessees, sublessees and occupiers of lots in strata schemes”, my interpretation was that Cl 117 could be only be applied to the “squatters”. As I can already use the Model By-Laws (as adopted) and two of our Special By-Laws to pursue them, and we’re doing that, I was looking for avenues to persuade our Proprietor / Landlord to terminate the Lease as our squatters aren’t fazed by matters legal, as evidenced by them to date ignoring Police directions.

                Jimmy T – our window could indeed cause harm to these people, but strange as it may seem one of the main circuit-breakers located in the common meter room  tripped-out on Monday, and now there’s no lights in the squatters Unit.

                So…now they’ve maliciously caused damage to the Common Property (insect screens and the intercom), so I’m using a Special By-Law (SBL) to invoice them for the Owners Corporation’s costs to make repairs, and as that SBL requires the Proprietor to make that payment if the occupants of her Unit do not (and they won’t), that should bring some financial pressure to bear.

                I’ve also discussed the provisions of the NSW Inclosed lands Protection Act with the local Police, and they believe that they may be able to issue the “squatters” with an on-the-spot fine ($550) and require them to leave our “inclosed lands”, that is the Common Property. So there’s a glimmer of hope there provided the “squatters” are in residence, and they can be coaxed outside.

                I’ll update progress if there’s any. 

                (Struggs – I just saw your post when I posted mine, and you’re right – there is more to the story, but as there are young people involved I perhaps shouldn’t elaborate any further than I did in my first post. So far as I’m aware, the rent is being paid by the combined funds of the Tenant and his Son, compliments of CentreLink and a Community Association.)  

                #17720
                Sir Humphrey
                Strataguru

                  @Whale said:
                  Thanks for the responses to date, and as an update….

                  …I’ve also discussed the provisions of … with the local Police…

                  Good idea. With the right local police it could be very helpful to you in the long term to be seen to have worked cooperatively with them to solve the problem. 

                  #18259
                  Whale
                  Flatchatter
                  Chat-starter

                    Here’s the latest, and hopefully almost the end of this saga:

                    • The Owners Corporation issued the “squatters’ with a Notice to Comply, and copied both our Proprietor/Landlord and her Property Managers.

                    • I got the job to continue to apply pressure to our Proprietor/Landlord, and no doubt aided by the fact that her tenant was six (6) weeks in arrears with his rent payments, she finally agreed to instruct her Property Managers to issue him with a Termination Notice.

                    • Almost two (2) weeks later, during which time the “squatters” continued to occupy the Unit and create merry-hell, the Property Managers finally got around to issuing the tenant with the Notice, which I now know was sent by post to avoid confronting the “squatters”.

                    • Problem was, despite the fact that there were ample grounds for the Property Managers to terminate the (continuing) Lease with 14 days notice, they took the easy way out on two counts – firstly by posting the Notice in order to avoid confronting the “squatters”, and secondly by avoiding the possible consequences of a Termination Notice by instead issuing a Notice to End the (continuing) Lease upon the expiry of the prescribed 90 days.

                    • Fortunately, a few days later I bumped into the tenant whilst he was reading the Notice that he had just removed from his mail box, and I was able to convince him to himself end the Lease in the prescribed 21 days; after all he wasn’t paying rent and wasn’t residing in the Unit.

                    • Albeit  12 days late, the “squatters” and their rubbish finally departed.

                    • Our Proprietor/Landlord inspected her Unit shortly thereafter, and wouldn’t you know that she’s already contacted me about repairs to that Unit, including to water leaks from pipes within a common wall that have, over a very long time, caused damage to all the kitchen cupboards and to the back of a built-in wardrobe.

                    • The Executive Committee (E/C) has advised our Proprietor/Landlord in writing which of the repairs on her extensive list are her responsibility and which may be the responsibility of the Owners Corporation’s (O/C) once she reimburses its costs to repair the damage that her “squatters” caused to Common Property (intercom etc) in accordance with the chain-of-responsibility outlined in our Special By-Law.

                    • Our Proprietor/Landlord has now undertaken in writing to pay the O/C’s invoice provided the amount is shown as a separate line item in equal parts on the next two (2) Levy Contribution Notices.

                    • The E/C agreed to that as a compromise, and we’re currently considering whether the O/C should meet the costs of repairs to the leaking pipes in circumstances where IF the Property Managers had regularly conducted inspections of the Rental Unit those could have been easily detected and reported to it very much earlier, and where there would have been little or no consequent damage 

                    • According to our Proprietor/Landlord she has no records of inspections ever being undertaken, and she’s currently whinging to her Property Managers about that.

                    • What our Proprietor/Landlord’s not saying is that she didn’t give a toss about the lack of inspections or the disruptions to our residents caused by her “squatters” so long as the rent rolled-in, and that’s why the E/C is currently considering whether the O/C should meet the costs of exposing and repairing those leaking pipes.

                    The joys of strata living!!!!

                     

                    #18263
                    Cosmo
                    Flatchatter

                      Hi Whale,

                      As well as following the general topic with interest, I took a special interest in the statement you made that:

                       

                      “The Executive Committee (E/C) has advised our Proprietor/Landlord in writing which of the repairs on her extensive list are her responsibility and which may be the responsibility of the Owners Corporation’s (O/C) once she reimburses its costs to repair the damage that her “squatters” caused to Common Property (intercom etc) in accordance with the chain-of-responsibility outlined in our Special By-Law.”

                       

                      Is it possible for you to outline the purpose and substance of that special by-law. It is something that I (and I am sure many other forumites) should be interested in as the general circumstances outlined in your original post on this thread probably occur a lot. 

                       

                       

                       

                      Thanks

                      #18265
                      Whale
                      Flatchatter
                      Chat-starter

                        Cosmo – Over 80% of the Units in our Plan are tenanted, and in that environment the purpose of this Special By-Law (SBL) was primarily to make our Proprietor/Landlords think twice about the types of people that they agreed to place in their Units by making them ultimately responsible for the costs of any damage that their tenants and/or their visitors caused consequent to a Breach of any By-Law.

                        I had to incorporate the costs of “mitigating the impacts” as there had been one incident which necessitated the Owners Corporation hiring barricades to place around a section of glass balustrade that was damaged by a rampaging tenant.

                        It’s worth noting that we have other complementary SBLs including one covering the correct operation of the security access systems to our Plan and another that mirror some provisions of the NSW Residential Tenancies Act such as one holding tenants vicariously responsible for the actions of their visitors (both currently relevant).

                        The obvious limitation is that this SBL is only effective where a person is in Breach of another By-Law and where the O/C has followed the correct procedures in managing that such as by issuing a Notice to Comply, and it’s been ineffective where one Landlord/Proprietor included the O/C’s invoice with his criminal proceedings against his tenant. The legality of the SBL was upheld by the Court, but the tenant was incarcerated and it wasn’t worth the O/C chasing the money.

                        So here’s the SBL that you asked for …….

                        Special By-Law 4 – Damage to Property arising from a Breach of By-Laws

                        (a) Where a Breach of By-Laws results directly or indirectly in any costs to the Owners Corporation, including but not limited to those for mitigating the impacts of that Breach or Breaches upon other occupants, for the repair of damage to Common Property and/or to the personal property of owners, occupants, authorised visitors / invitees and contractors then at the property, then the person/s committing the Breach must reimburse to the Owners Corporation all of its costs to mitigate the Breach, and for its costs to rectify / repair all damage caused;

                        (b) Where the person in Breach is a visitor/invitee, then the occupant of the Lot being visited is responsible for the full payment of the Owners Corporation’s costs as outlined [in (a)] should their visitor/invitee not do so, and in default, the Proprietor of the Lot being visited becomes fully liable for the reimbursement in full of the costs shown [in (a)]. 

                        #18267
                        Cosmo
                        Flatchatter

                          Whale, thanks.  I have followed your posts since my joining and your knowlegde and willingness to share are greatly appreciated!

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