Dealing with nuisance owners
02 Sep 2015
If you talk to any strata manager first up on a Monday morning you can usually be assured that the first half day of the working week will be spent going through all of the emails they have received on a weekend.
Strata managers are not usually trained to charge like lawyers. Perhaps that is the legal industry’s defence to the same issue?
Anyway, Tank Tower (and what an excellent community website we must say) had an owner that obviously delighted in emailing all and sundry. The decision does not expressly deal with what was being sent to the body corporate, but it does comment that the sheer volume of correspondence was not reasonable. It was said that the frequency, repetition and tone would not be what an ordinary person would view as a reasonable level.
The body corporate had a by-law that required that communications be reasonable and not a nuisance. Based on that, the Body Corporate went through the by-law breach process, and when the communications continued, it sought an order that the owner had breached that by-law and to impose rules around how ongoing communications were to be managed.
The adjudicator found this by-law was breached, but don’t panic if you don’t have a by-law like that and you find yourself in the same circumstances.
The adjudicator also considered section 167 of the Body Corporate and Community Management Act 1997 (the Act). This says ‘the occupier of a lot included … 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.
One of the standing jokes we make at strata presentations is that the Act prevents actions which interfere unreasonably with others in the scheme. The Act does not prevent actions which interfere reasonably with others!
The adjudicator indicated that if the emails were being sent from within a lot in the scheme, the wider scope of section 167 may also restrict the owner’s actions. Having said that, this interpretation may make it more difficult if you had a belligerent investor owner causing issues and you had no nuisance by-law.
Obviously, under either provision, what is complained of cannot be minor, and that will depend on each individual set of circumstances.
At this building it was clear that the communications did cause a nuisance. On that basis the adjudicator did impose restrictions around the owner communicating with the body corporate. These restrictions included:
Written communications shall only be sent by pre-paid post at the address of the body corporate manager
|No more emails. Emails certainly make it easier for everyone to fire off things at a whim. Taking the time and effort to put together correspondence may slow down the volume.|
A maximum of one piece of written communication may be sent per week, unless the Body Corporate invites additional written communications.
|Save the issues up and put them together.|
Any item of written communication shall be limited to a maximum of 2-pages in length containing a maximum of 1,000 words.
|The lawyer in us can't help but think about font size and line spacing when it comes to page length, but the adjudicator cleverly captured it with a word limit. Repetitive verbosity at your own peril.|
Verbal communications shall only be made by telephone to the body corporate manager unless the Body Corporate expressly invites verbal communications with other persons or verbal communications other than by telephone.
|The body corporate manager may well need to filter calls. Direct lines remain a peril.|
|Written and verbal communication should be courteous and not abusive or offensive.||Bingo. Kindergarten rules apply.|
The Body Corporate is permitted to disregard any communications that it reasonably considers do not comply with the above requirements.
|Perfect. The Body Corporate does not even need to respond to correspondence that does not comply with the rules.|
|The Body Corporate is not required to acknowledge receipt of any written correspondence.||We see this occasionally (even for ourselves). There is no need to call us to confirm we got your email. There is no corresponding need to send a communication acknowledging receipt of correspondence – as much as some strata managers have an automatic response email to every email they are sent. Any body corporate decision is a committee one, so absent something extraordinary, most correspondence will have to wait until after the next committee meeting.|
The Body Corporate must act reasonably in determining whether any communication requires a response, including considering whether the communication repeats matters addressed in previous communications.
|This is the ‘play nice’ piece on the part of the Body Corporate. Fair enough.|
That is a pretty clear set of ground rules.
A body corporate (like anyone really) is entitled to expect communications to be reasonable, respectful, constructive, and not a nuisance. You wouldn’t think that is too much to ask in this day and age.
We also think that has potential application for communications ‘owner to owner’ or ‘owner to service contractor’ (read resident managers). The legislative provisions do not appear to apply just with respect to issues arising between an owner and a body corporate.
You can read the decision here and if anyone needs help with a problem owner, let us know.
Play nice kids.