What is nuisance? How do you define bullying or abuse?
In body corporate disputes it is common to see parties claiming they are experiencing instances of nuisance, harassment, bullying or abuse.
This clearly indicates that there are serious difficulties and challenges to be resolved.
However, it is important to be clear about specific terms like ‘nuisance’ and what they actually mean when it comes to strata living and dispute resolution.
Body corporate law in QLD states that lot owners and occupants must not cause a nuisance.
But what constitutes a nuisance?
What is the threshold for when annoying or disruptive behaviour becomes a legally defined nuisance?
‘Nuisance’ is a concept provided for under section 167 of the Body Corporate and Community Management Act 1997 (the Act) the section about ‘nuisance’ provides that an occupier “must not use, or permit the use of, the lot or the common property in a way that –
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.”
Issues such as parking, excessive noise, unruly pets, eyesores or additions to balconies or courtyards, and smoke drift are some of the most complained about nuisances.
However, whether certain behaviour is considered a “nuisance” can be complicated as “nuisance behaviour” can be subjective. What one person may consider a “nuisance” may not necessarily be a nuisance in the eyes of someone else.
Dealing with a Nuisance
Living with your strata neighbours peacefully is vital to your quality of living, so understanding your responsibilities and what restrictions apply, can make all the difference to create harmonious community living.
STEP 1: TALK
Talk directly to whoever is responsible for the nuisance. Inform them of what’s going on in a friendly and gentle fashion. You’d be surprised how often the guilty party isn’t aware of the problem. Only do this if you feel it is safe.
If the nuisance involves children, you should speak to their parents.
In some instances where the noise or nuisance is happening late at night or in these COVID times, is happening in breach of social distancing guidelines, you may want to refer the incident to the police as your first action.
STEP 2: Put it in Writing
If step 1 hasn’t worked or if it has only worked temporarily, be clear what your concerns are and articulate in written form not just those concerns but a possible solution.
Avoid a threatening language along the lines of ‘YOU BETTER STOP MAKING NOISE OR ELSE’. Instead, try to be specific about the problem, when it happens, how often it occurs and what impact it has on you.
STEP 3: Issue a contravention notice
Steps 1 and 2 are essential to demonstrate that you have tried to resolve the issue yourself. That is required by law if you move to steps 3 and 4.
Step 3 involves enforcing a by-law or pursuing a nuisance breach. For each step you’ll need evidence.
Notify the Body Corporate Manager or Strata Committee of the problem. Follow your building’s procedure in making the notification and include as much documentation and detail as you can.
The Committee can then follow up the issue and if required, issue a Contravention Notice requesting that the offender comply with the by-law.
Occupiers can draft and issue a BCCM Form 1 to report breaches of a schemes By-laws to the Body Corporate. The submission of a Form 1 implements a formality to the breach process and requires the Committee to make a decision on whether a Contravention Notice is issued to the respondent.
Step 4: Commissioner’s Office
If the problem continues after a contravention notice has been issued, the committee can than follow through on the dispute resolution process in accordance with the BCCM Act via the Office of the Commissioner for BCCM which includes firstly conciliation, if that is not successful the Body Corporate can escalate to the next step Adjudication.
Top tips for avoiding nuisance complaints in your strata property
- All owners and occupiers should have a copy of the scheme’s by-laws and fully understand their rights, responsibilities and restrictions while living in a strata property.
- If you are renting out your lot, ensure any guests or tenants have a copy of the by-laws or rules as they are also responsible for maintaining peace while occupying the property.
- Before making a complaint against your neighbour for creating a nuisance, take the time to find out if they’re within their rights or not and follow the right process to get the matter before your committee.
- When in doubt of whether someone’s actions qualify as a “nuisance”, consult with your body corporate manager before acting.
Bullying, Abuse and Harassment
If you feel bullied, abused, or harassed by a neighbour, your first reaction might be to take it to your body corporate manager, building manager, or the committee.
Unfortunately, they may be unable to help you, as the BCCM Act and its regulation modules do not explicitly refer to bullying, harassment or abuse.
Body corporate law in QLD does not consider or define ‘harassment’ and adjudicators do not have the power to make an order about one party harassing another.
Even if someone is suffering considerable distress from behaviour that could be perceived as harassment the Office of the Body Corporate Commissioner has no jurisdiction to consider any such claim.
For situations of perceived ‘harassment’ it is advisable to seek legal advice to consider your options to deal with matter.
Similarly, body corporate law in QLD does not provide for or define ‘bullying’.
Bullying as a term can have particular meaning in different contexts, for example, in relation to workplace health and safety.
Examples of bullying include:
- verbal abuse
- putting someone down
- spreading rumours or innuendo about someone
- interfering with someone’s personal property
Like with instances of ‘harassment’ adjudicators have no capacity to provide dispute resolution around allegations of abuse and legal advice should be sought to consider what options are available to deal with a situation in which they feel they are experiencing abuse.
Instances of physical abuse and violence should always be referred to the Police.
Dealing with Bullying, Harassment and Abuse
Below are some ways in which you might be able to deal with bullying, harassment or abuse in your strata community.
When to contact the police?
According to Legal Aid Queensland, threats, abuse and harassment can be criminal offences.
If you’re receiving threats of violence, or are being verbally abused or harassed, you can report it to police.
If it’s an emergency, you can call Triple Zero (000). You should only call 000 if a crime is underway, or if a life or property is in immediate danger.
For all non-urgent police reporting, you can contact Policelink on 131 444.
If someone is harassing you online, you can report it to the Australian Cybercrime Online Reporting Network, who can pass it on to the relevant enforcement agency.
When to take legal action?
In some situations you may be able to apply for a peace and good behaviour order.
If you need protection from domestic or family violence, you can apply for a domestic violence order.
If none of the above options are suitable and if talking with your neighbour hasn’t worked, or things have deteriorated too far, neighbourhood mediation might help.
The Queensland Government’s Dispute Resolution Centres offer free mediation to help you manage disputes with neighbours without going to court.