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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:

Condition Our comment

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.  

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Comments
Peter Crymble w
Posted about a year ago
I have a simple solution that doesn't require any mediation, discussion or the involvement of the Committee or Commissioner. I simply put a "Block sender" on any emails I deem to be a waste of time. Good luck then.
Prue Holyman w
Posted about 2 years ago
A good read..
Frank Higginson w
Posted about 2 years ago
Without doubt it will all depend on the quality of the correspondence and the issues being raised Deirdre. The other thing that this decision noted was the right always remains for a disaffected owner to make an application to have conduct that is unlawful or improper dealt with in the Commissioner’s office. That doesn’t mean that a committee has to do what those who are not on it want it to do, but there is a statutory oversight of committee conduct in that sense. It then comes down to the will of the people as to who they want to govern the scheme
Gavin Smith w
Posted about 2 years ago
Thank you for this excellent article which rings so true. We have "that" owner who bombards the body corporate with self-centered, excessively long e-mails. He also does 7 page letter drops to all mail boxes in the complex attacking such things as round-up spraying causing health hazards and generally trying to incite action against the property managers, who we as the body corporate committee feel are doing a great job. He would cost the body corporate in excess of $1000 dollars a year in unnecessary legal fees and extra administration purely to indulge his selfishness. This article will give our committee a basis on which to confront the problem.
Deirdre Baker w
Posted about 2 years ago
The difficulty is determining who are 'nuisance owners' writing to their Committee and Body Corporate Manager. There is an assumption that a collective group of people (ie. the Committee and service providers) are less aberrant than an individual. A scenario: a group of owners has substantiated evidence that the Committee has been elected by the influence of the service providers (esp the rental agent) and members of that elected Committee have little knowledge of the Body Corporate legislation and minimal contribution to the management of the scheme. A group of concerned owners regularly writes to the Committee and Body Corporate Manager raising many matters of concern that are not addressed by the Committee. They are continually labelled trouble makers. Is this group of concerned owners, who are knowledgeable of the BCCM legislation, labelled 'nuisance owners'? The legislation is silent on protecting owners who are attempting to get transparent, fair and lawful implementation of the BCCM legislation in their community scheme.