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Hey everyone, just registered to ask about my situation.
Basically my current housemate and I chose to rent our current place over a few other offers in November 2013 because of an attached courtyard. [The real estate agent] made this feature central to the advertisement on domain.com. The webpage is still archived online and I saved it to my hard drive for offline viewing just in case it mysteriously disappears. Back then neither I nor my housemate knew what common property even was or anything about strata law etc. Good times.
Since 2/2/2015 there have been efforts made by OC to take the courtyard away from us. First, half the height of the fence went (1ft of wood lattice on top removed but 1ft of brick wall remains- higher than 1ft, roughly waist height, from street level as courtyard is built up). Then on Friday (17/4/2015) we received a letter from a Strata Management Company (SMC) telling us we had to remove our personal belongings from the courtyard immediately. We stood our ground and gained a deadline at the end of this month but we want to do more. I know OC can enforce by-laws and I respect this. In this case it appears to be their own amended version of By-Law 9 but I’m yet to confirm that. Going to ask for a copy of their by-laws tomorrow. Here is By-Law 9 verbatim in the Strata Schemes Management Act 1996;
“An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property”
This obviously didn’t suit their purpose so they had to tailor it. Here is the By-Law we are said to be violating in a letter (not a proper Notice to Comply with a By-Law order) from the SMC. The words in capitals are underlined in the letter as though emphasizing where our fault lies.
“An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust OR OTHER MATERIAL or discarded item except with the prior written approval of the Owners Corporation”
So in a fully enclosed courtyard only accessible through our flat we are now being told to remove our table and chairs, a worm farm, compost bin and herb garden and have effectively lost all privacy and use of the area. This is despite us being given reasonable expectations that the courtyard was ours to use by the ad in domain.com. So what can we do if anything? I’ve already spoken to Dept Fair Trading. They said there is possibly a false advertisement issue but that we could also appeal to have our rent lowered for loss of advertised space including back pay of reduced rent going back to removal of fence. They even said we could appeal to an adjudicator to maintain use of the area despite By-Laws given the context of how everything has happened. I don’t know how successful that will be.
Also the SMC is threatening to remove the items mentioned above and charge us for the removal costs. Dept of Fair Trading told me, regardless of whether it sits on common property or not, they do not have the power to remove people’s personal belongings. They can issue Notice to Comply with By-Law orders and enforce those with a $550 fine if they feel the By-Law continues to be violated at any time in the next 12 months. But removing people’s personal belongings without their consent could be treated as theft. Should I reneg on the agreed deadline to remove the stuff which is the end of April? Note: despite this verbal agreement they have tried to reneg on it twice by pushing it forward, once to the end of the weekend just passed and today they tried to push it forward to the end of this week. Our real estate stuck up for us (at least so far) and basically got the SMC to admit to these attempted shenanigans despite verbal agreement. So why the hell should I be a doormat if they’re trying such hijinks?
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Their are too many unknowns to start with. The main one is whether it is common property or lot property and everything else depends on the ans to this question.
Your owner should have a copy of the strata plans so he is the one to ask because if the OC are trying to take away his courtyard he won’t be a happy camper.
An alternative is to obtain a copy of these plans from the Stata Lands dept for less than $20 yourself.
As to the bylaws their relevance depends on the above but you should have been given a copy of the bylaws by your Rental Agent on signing the rental agreement (see section 35 of said agreement) and if not ask for them now from your rental agent.
Almost certainly, ‘Disappointed’, you will lose out because, while it’s not your own fault, you are unfortunately in the wrong.
Blame the real estate agent for ‘leading you up the garden path’ and maybe the owner of the property too. The Owners Corporation and whoever is acting for them (the Executive Committee or Strata Manager) is doing what they should, though they should be doing it through the owner who will probably flick it to the real estate agent.
Remove your stuff and whatever else you need to do to make things right at ‘ground zero’, with the EC and other residents I mean, and start making heavy demands of your real estate agent and the owner of the property to find you another place or reduce the rent. They are the ones who misled you and who you need to deal with to get compensation in some form. Not the OC.
@kiwipaul said:
Their are too many unknowns to start with. The main one is whether it is common property or lot property and everything else depends on the ans to this question.Not true. The Owners Corp can still issue and enforce by-laws that relate to the appearance of items on lot property. That’s how, for instance, owners can be prevented from drying laundry on their own property but which is visible from outside.
But you are right about it being significant what the by-laws say. That is the ONLY thing that matters.
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.
It would probably help if the original poster stuck to the facts and didn’t exaggerate their claims. They have not been denied access to their backyard, they have been told to remove certain items.
The by-law (if it is in any way similar to the one cited) does not cover garden furniture or other equipment – unless they have been dumped in the yard and are unsightly. A composting bin doesn’t seem to breach the by-law – a pile of compost might.
However, the underlying attitude of the EC is typically “renters have no rights”. Obviously, someone objects to the worm farm and the composting bin but they don’t have the necessary by-law to force them to be removed. In which case I would sit tight and tell them that if they try to remove the items you will call the police.
The reduction of the fence size is an issue of privacy and loss of amenity and should be raised with the landlord, possibly with a view to getting a rent reduction.
This is not a case of false advertising – that is absolute rubbish. It’s a case of someone not liking what you have on your terrace and complaining to your strata manager. It has zero to do with your real estate agent. If the ad had said “perfect for worm farm and composting bins,” then you might have a point.
While we’re on the subject, there is nothing to be gained by overstating your case, especially when you have reasonable grounds for rejecting their demands.
Let them issue a proper Notice To Comply, ignore it or reject it, take the issue to NCAT and if NCAT says the stuff has to be moved – which I believe is highly unlikely – then either move it or cop the fine (which will be nothing like $550).
Chances are, however, by turning the heat on this up to 11 as an initial response, your lease will probably not be renewed and the problem will cease to exist because you will be living somewhere else. And in the meantime the Owners Corp will probably pass a more comprehensive by-law that covers the kind of things they allow on their terraces.
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.
@JimmyT said:
Not true. The Owners Corp can still issue and enforce by-laws that relate to the appearance of items on lot property. That’s how, for instance, owners can be prevented from drying laundry on their own property but which is visible from outside.
I disagree it depends on whether it’s common or lot property. If it’s lot property they have every right to have a table and chairs in the courtyard (and the worm farm if it doesn’t smell or appear an eyesore). Also a rotary clothes line in a courtyard to dry clothes would generally be acceptable.
If common property the Strata can ask for all to be removed IF the rule is applied consistently throughout the complex.
Most courtyards would be lot property (not common) and so this needs to be determined as a first step.
@kiwipaul said:
I disagree it depends on whether it’s common or lot property. If it’s lot property they have every right to have a table and chairs in the courtyard (and the worm farm if it doesn’t smell or appear an eyesore). Also a rotary clothes line in a courtyard to dry clothes would generally be acceptable.
That’s simply not true. Maybe in Queensland, KP. But here in NSW you can create and enforce by-laws that cover the appearance of your lot from elsewhere in the strata scheme or even from outside. For instance, some buildings insist on a certain colour of internal blinds so the building has a uniform appearance from outside. That’s private property on a private lot. So, certainly as far as NSW and Victoria are concerned, you are wrong.
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.
@JimmyT said:
That’s simply not true. Maybe in Queensland, KP. But here in NSW you can create and enforce by-laws that cover the appearance of your lot from elsewhere in the strata scheme or even from outside. For instance, some buildings insist on a certain colour of internal blinds so the building has a uniform appearance from outside. That’s private property on a private lot. So, certainly as far as NSW and Victoria are concerned, you are wrong.I’m sure this is a windup JT because you surely not advocating that Strata can insist that table and chairs must be removed from a balcony (or courtyard) if they are visible from the common areas or outside.
Bearing in mind 50% of balconies now have glass fronts which makes anything on the balcony visible and so could be classed as spoiling the uniform appearance of the building. Any EC in QLD that tried to enforce this standard bylaw regarding appearance would be voted out at the next AGM.
I don’t think I can last remember when I’ve not seen tables and chairs (and other items) on occupied balconies in Oz.
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