Flat Chat Strata Forum Common Property Current Page

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  • #9053

    Righto first time poster here so go easy !

     

    In my building ( I’m a 5 year owner ) we have a pizza shop as a tenant that has been there since the building was constructed in 2001, now they are using 2 Common Property storage area for storing of food and equipment.  I assumed that they were paying rent to the Owners Corporation.  

    We recently had a change in the onsite Property managers and it was threw conversations with him that we both discovered that they werent paying rent and they were also stealing electricity to run commercial fridges stored in these 2 common property storage spaces.

    This led me to searching threw the Strata books as I wanted to see if there were any documents as to how they had secured these spaces, no documents were found.  

    I can only assume the original developer ‘ gifted the use ‘ of these spaces and nobody ?? was any the wiser over the years.

     

    The Pizza shop owners when challenged on the occupation of the 2 spaces brought up squatters rights and the Strata Manager has indicated that the Owners Corporation has no power under the Strata Act to remove the squatters from the Common property ! WTF  sorry but these has got me very frustrated.

     

    Funny thing is our Property manager had contacted the Strata Manager on numerous occasion and asked him to supply him with any documentation and it wasnt supplied.  This should have been alarm bells to the Strata manager yet nothing was done.  This also occured within the 12 year statute for squatters possesion, therfore potentially making the Strata manage liable if the Pizza shop gains legal possesion of the common property should a squatters claim be successful.   i know this sound crazy but it appear that they have stripped atleast $100,000 value from the owners corporation thru lost rent and electricity use.

     

    So has there ever been a successful squatters  claim in Strata land ?

     

    Under the strata act can an owners corporation really not evict an occupier from a common property storage area ?

     

    What course of Legal Action could be taken for the theft of Electricity ?

     

    many thanks Stephen

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  • #19579

    I would seek legal advice but I would think as they are tenants they are bound by the bylaws so they can’t cry squatters rights. 

    Squatters are not tenants, so the tenants are in breach of the bylaws (which ones I don’t know as I do not know what bylaws apply), so a notice to comply with the bylaws, if that doesn’t work, then mediation, if that doesn’t work then adjudication. 

     

    #19598
    kiwipaul
    Flatchatter

      Get the committee to issue them with a NTC as their must be a bylaw that says you cannot use common property without permission. Also turn off the power at the switchboard to these common rooms so they can nolonger steal your power.

      If it is common property you have just as much right to access it as the Pizza owner so go poke around in their when he is their and them ask him to provided a copy of his retntal agreement for the common property or exclusive use bylaw.

       

      #19634
      Whale
      Flatchatter

        Stephen – as your Building was constructed in 2001, and if it’s in NSW then the By-Laws shown at Schedule 1 of the NSW Strata Schemes Management Act (SCMA) would apply, and the most relevant of those would be:

        3. Obstruction of common property

        An owner or occupier of a lot must not obstruct lawful use of common property by any person; and…

        17. Appearance of lot

        (1) The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building; and…

        Under the SCMA, residents (including tenants) may not alter, add to, or erect any structure on the Common Property without the prior written consent by the Owners Corporation.

        So in my opinion any or all of the above would provide the Owners Corporation (O/C) with ample grounds to issue the Pizza Shop Tenants with a Notice to Comply (NTC) with a By-Law; in fact issue them with two (2) NTCs – one for each By-Law non-compliance.

        That will no doubt get the ball rolling by providing your O/C with the means to proceed to Mediation with the assistance of the NSW Office of Fair Trading, and depending upon the outcome, to the Consumer, Trader, and Tenancy Tribunal  (CTTT) for Adjudication if the Pizza Shop Tenants do not comply with the NTC.

        With regard to the unauthorised use of electricity, I assume you’re referring to the “house” or Common Property supply in which case I’d firstly suggest the O/C engages the services of an Electrical Contractor to determine whether or not that supply is correctly / safely / legally connected (e.g. extension cords to cool rooms would be illegal), and if it’s not correctly connected then your O/C should contact the local Electricity Distributor (the poles and wires people) about disconnection.

        That in my opinion is a better approach than the O/C simply turning off the unauthorised electricity supply and thereby risking some legal response by the Tenants for loss of their cool room contents.

        On the subject of legal responses, as OverIt advised (post #2) the Pizza Shop Tenants are occupying the Commercial Lot with the permission of the Owner and under the terms of a Lease, so they’re not squatters and any concerns about their occupancy of the Common Areas under “adverse possession” provisions are in my opinion groundless.  

        The provisions of the SCMA applies, and your O/C should instruct its Strata Manager (SM) to get off his ?*!^ and issue the NTC, which by the way your Plan’s Executive Committee will need to meet and formally resolve and minute to do, before then providing the above instruction to the SM.

        Finally, who is the Proprietor / Landlord of the Commercial Lot, and what do they have to say about all this?

        #19692
        alley cat
        Flatchatter

          Further

          If the tenant is storing flammable items e.g. cooking oil, on common property this could well breach the buildings insurance, in the event of a fire in this part of the building. 

          I am aware of a building that had a similar problem to the one you are describing with the addition of a fire. The OC had been trying for some time to get the commercial premises to move similar items out of common property and had been given some legal advice about the fire issues with end result that they had passed a by-law about storage on common property. I am not sure of the specific details, but the by-law did help with their insurance claim. 

          This was a nightmare situation for residents as they had to move out of their homes and deal with the damage. 

          What the #@## is your strata manager doing about this problem, your EC and OC need to mobilise fast on this one. 

           

          Good luck

          Alley cat

          #19702

          Hey thanks to everyone who has responded, this is a real spaghetti situation but I appreciate all of the suggestions.  It seem that an OC meeting is going to be held hopefully in a couple of weeks.  And Im I’ll be pushing for the strata manager to start issuing long over due Notice’s to comply with the Bylaws.

           

          The Strata manager has reall put his head on the chopping block over his lack of urgency.  And even if he does clean up this mess I’ll be pushing to have him replace.

           

          Yes they are storing drums of cooking oil in 1 of the CP unit and they have installed a massive table sized grease trap in the other.  Above this grease trap they’ve wired up numerous A/C unit and compressor for exhaust fans.   All of this was done over the last 12 years without any consent or approval.

           

          It would seem to me that should 1 of these compressor fail and sparkys or a small fire eminated then theres about 1500 litres of grease, which has overflowed onto the floor on numerous occasion.

           

          I mentioned in passing to the onsite property manager today (new guy) of the potential fire risk, and the risk to the entire Building’s fire insurance policy, and he was straight onto the phone to the strata manger !  Boy did he fire up !

           

          Anyway Im off to Cape York fishing for the next 10days so I may not have much contact.

          Thanks Steve Smile 

           

           

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