Most strata schemes see residents living in dense environments. When different people are brought closely together, it is not always smooth sailing. A common concern is whether a body corporate can effectively deal with parties and the unruly behaviour that follows.
A common misconception is that a resident has a right to the quiet and peaceful enjoyment of their property at all times. This often translates to some strata schemes adopting by-laws requiring that there be no noise after, say, 10pm. The principle of ‘give and take, let and let live’ is applied.
An ordinary use of a lot may cause some inconvenience to neighbours from time-to-time. The law will not interfere with that. But the law does prevent a lot or the common property from being used in a way that causes a nuisance or interferes unreasonably with others. It will be unreasonable if it causes material inconvenience to an ordinary person. Our rule of thumb is that if most neighbours agree that the residents of lot x let their party get out of hand; the chances are that the illusory ‘ordinary person’ would agree. Where to from there?
- If the noise carries on until late into the night, becomes unbearable and/or there is any concern for damage to person or property – call the police.
- Record the details of any nuisance: who, what, when and where? There is little your strata manager or committee can do without this detail. If enforcement action is taken, the body corporate will need to prove its case.
- Neither a body corporate nor an adjudicator can evict an unruly occupier. Instead, adopt by-laws to give the body corporate more tools to address nuisances. This can include a by-law requiring an owner to take all reasonable steps to ensure their tenant complies with the by-laws, such as by issuing notices to remedy breaches and, if appropriate, terminating the tenancy.
The biggest problem with a scheme’s by-laws is that they are difficult to enforce, and a body corporate can often be reduced to a toothless tiger. That may change in the near future. The Government’s law reform team had been reviewing this issue since 2015. In 2017-18 they recommended allowing bodies corporate to issue fines for failures to comply with by-law contravention notices. Further, an investment owner may be held liable for fines issued to a tenant. The time has now come for the Government to decide whether to take up this recommendation or not.
By-laws are taken to be terms of any residential tenancy agreement. A landlord takes a security bond to guard against property damage. That should also be extended to guard against repeated breaches of the by-laws by a tenant.
Author: Jason Carlson, Grace Lawyers