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Tagged: legal costs
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23/02/2023 at 6:25 pm #67651
Long and ongoing saga. For 5 years an ‘unwell’ irrational neighbour believes she is being poisoned by ‘fumes’ from neighbours bathroom exhaust fan and air-conditioning unit. Any rational person would know this is impossible. However, this person regularly harasses the neighbours about this at all hours. Strata Manager has advised to get a ‘cease and desist’ notice from a solicitor. As the dispute /problem is between two neighbours is the owners corporation allowed to pay legal costs from strata funds .
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23/02/2023 at 6:25 pm #67658
Depends on whether the exhaust and aircon are common property or not. That’s your starting point.
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.
24/02/2023 at 9:47 pm #67669Whether the items are owner or OC property is irrelevant.
One owner is being harassed by another owner.
That is not a strata issue, it’s a person issue.
Note, there is no such thing as an enforceable cease and desist order.
Having dealt with something similar, my recommendation is that the affected person apply for an Apprehened Personal Violence Order. (APVO).
In NSW you can apply on line. You need to have some evidence ( diary notes, emails etc) to support your case.
I would then recommend to get a lawyer to represent you. At the first appearance in court, usually within three weeks of applying, your lawyer will apply for ban interim order till a hearing date is set.
If the offender breaches the interim order, it could lead to arrest and jail.
Of course it’s the affected person who has to front the costs. But what is peace worth?
24/02/2023 at 10:21 pm #67671That is not a strata issue, it’s a person issue.
That is simply not true.
It is a strata issue if the owners corporation decides it want to get involved – and whether or not they can legally do so is the whole point of this post.
AVOs, as has been discussed many times on this forum, are hard to get and harder to enforce.
“… there is often a gulf between the letter of the law, its intent and its implementation. And it’s that latter reality with which we have to deal.” Your quote about APVOs from January last year
The question here is that, if the owners corp wants to get involved, would it be valid for them to do so? And my answer is, if the fan and aircon are common property and therefore causing the alleged nuisance, then yes, it is valid.
By the way, I also believe that corporations are, legally, considered to be “persons”. And what if the “affected owner” (I assume you mean the person receiving the complaints) gets an APVO against them to stop doing whatever it is that their fans and aircon are doing.
If it’s common property it’s not their equipment so there’s nothing they can do.
Assuming the equipment is common property, the common sense approach to this would be for the OC to stand with the owner – unless the owner is using the equipment incorrectly, dangerously or offensively.
In fact, if the “affected owner” simply said “This is not my equipment so I can’t do anything about it” the unreasonable neighbour might decide that taking on the whole building was a fight they didn’t want.
Either way, I stand 100 per cent by what I wrote before – if the equipment is common property, the OC can get involved and, in fact, may have little choice in the matter.
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.
27/02/2023 at 1:15 am #67682Thanks. The aircon and exhaust etc are not common property but this accusation has been levelled at different owners within our complex over 5 years. Ie at one stage an upstairs apartment, another time other apartment owners. One owner took out an AVO but eventually just sold and moved. Very complex issue.
27/02/2023 at 1:25 am #67686Ah, if the aircon and exhaust fans aren’t common property, then your next step might be to follow Kaindub’s advice and issue an APVO – but since that didn’t work in the past, it’s unlikely to work now.
I think the fact that this individual has targetted several residents in the building previously may justify Owners Corp action. It’s not mandatory but no one will go to the tribunal if the OC contributes to legal fees.
Perhaps a writ for damages of tens of thousands of dollars might put her gas on a peep. I’m not saying you’d win such a case, but maybe the threat of having to pay a lot of money to defend it and potentially more if she lost might put her back in her box.
That said, if we are talking mental illness here, logic may no longer apply.
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.
01/03/2023 at 3:25 pm #67716I was going to write suggesting an APVO
However your case is , as you say, complex.
The problem seems to be a mental health issue, and not one of willful objection.
Unfortunately, under our judicial system, there is little that can be done. I’m sorry to say.
Being mentally ill is not a crime, and neither lay people nor the police can commit a person to seeking treatment for it.
You should be calling the police every time there is an adverse encounter, so that a record can be created.
The only time the judicial system will intervene is if this person does a crime (assault, murder etc) and more than likely they would be then treated under the Mental Health Act
03/03/2023 at 12:26 am #67726Good evening Greynatter,
I agree with what has been suggested in case this complex matter may well turn on the grounds of “mental health”.
Two things come to mind:
- In your shoes I would seek to document any and all instances you witnessed or heard of that demonstrated that the neighbour is not ALWAYS “irrational” and not ALWAYS suffering from “mental health issues”, but indeed AT TIMES is quite “rational” and functions well. If you can show situations that paint a picture of a person behaving at times in a manner that is “normal and reasonable” and at other times behaving as though he is “unwell”, that may help dilute the presumption of genuine suffering from “mentally illness” and may rob him of the ability to diminish his liability (assuming he is found liable); and
- Look up “private nuisance”. Nuisance (private or public) is a civil wrong that involves a person or persons causing indirect, unwarranted and/or unreasonable interference with the interests of others. Google strata lawyers (who sponsor this website) for articles on the subject and hunt down previous cases at tribunals and courts to see the outcomes of those cases.
Good luck!
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