The Victorian Civil and Administrative Tribunal has published a decision which provides some further clarity as to how a Plan of Subdivision is interpreted to determine the boundaries between the common property and the lots. The decision illustrates the difficulties faced by owners corporations and their members in determining liability for unreasonable flows of water into a lot. Continue reading
CASE NOTE
Supreme Court confirms that OCs must carry out works to common property to avoid discrimination against persons with disabilities
The Victorian Supreme Court has upheld an earlier decision by VCAT which found that owners corporations provide “services” in relation to common property for the purposes of s44 of the Equal Opportunity Act 2010. The practical effect of this decision is that owners corporations are obliged to make “reasonable adjustments” to the common property to avoid discrimination against persons with disabilities. Continue reading
Which prevails – the OC Rules or the Planning Permit conditions?
The Supreme Court has determined a case, Elwick 9 Pty Ltd v Freeman [2018] VSC 234, which examined the question of whether owners corporation rules (OC Rules) which are inconsistent with the conditions on a planning permit can be acted upon or are of no effect. Continue reading
OCs may be obliged to carry out works to upgrade access for persons with disabilities
In Black v Owners Corporation OC1-POS539033E [2018] VCAT 185, a resident developed a disability which required her to use a wheelchair or scooter. She had difficulty accessing her apartment because she was unable to operate the entry doors and the ramp from the car park was unsafe for her. The resident sought an order that the OC make adjustments to the common property so she could access the building independently. Continue reading
The legalities around apartment living
I was a guest recently on the ABC Radio show “Writs and Cures” with Lindy Burns, BIll O’Shea and Steve Ellen discussing the legalities around apartment living.
A link to the audio is HERE. The apartment living segment begins at about the 19 minute mark.
The Tribunal’s power to make “any order it considers fair” is not unlimited
The Supreme Court has re-iterated that legislative provisions providing a broad power for VCAT to make orders as it sees fit do have their limitations. The Tribunal can only apply a remedy if there is a separate legal right which can be identified enabling it to do so. If the right is identified, the broad power provision to make orders enables wide remedies to be applied to exercise that right.
In relation to owners corporations, the limitation applies to s165 of the Owners Corporations Act 2006 which states that in determining an owners corporation dispute, the Tribunal “may make any order it considers fair”.
The issue was discussed in Energy Technology Australia Pty Ltd v Owners Corporation PS 439401J [2017] VSC 145. Continue reading
Dispute Resolution procedures in the Owners Corporations Act
The Supreme Court considered the meaning of dispute resolution procedures set out in Part 10 the Owners Corporations Act 2006 and the implications of not following those procedures prior to filing proceedings in the Tribunal in Shearman v Owners Corporation No 1 417405Y [2016] VSC 551. Continue reading
Correcting errors on the plan of subdivision to change the boundary between two private lots
ASA Nominees Pty Ltd v Owners Corporation PS 513436B and Adamopoulos [2016] VSC 562 arose from a surveyors error which occurred when lots in the plan of subdivision were re-subdivided. An amended plan was registered which showed the boundary between two lots as located 3 metres to the west of the wall that was intended to form the boundary. Continue reading
Special Rules – they might be made by the owners corporation but are they valid?
An owners corporation has the power to make special rules under s138 of the Owners Corporation Act through a special resolution. Special rules are required to be lodged with the Registrar of Titles (s142 of the Act) and can therefore be found on the Register by prospective purchasers.
Importantly, making rules by special resolution and placing those rules on the Register does not mean those rules are necessarily valid. Continue reading
Leases over common property
Lot owners have successfully upheld their rights in relation to leases granted over car spaces and courtyards on common property. Continue reading
