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Andrew Suttie's slides - 29th September 2015 presentation - Body Corporate issues

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Andrew Suttie's slides on:
Dividing Fences
Trees
Retaining Walls
Parking/Towing
Private Short-Term Letting

as presented to Body Corporate Systems, 29th September 2015

Published in: Law
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Andrew Suttie's slides - 29th September 2015 presentation - Body Corporate issues

  1. 1. Dividing Fences Trees Retaining Walls Parking/Towing Private Short-Term Letting Presented by Andrew Suttie for Body Corporate Systems
  2. 2. Dividing Fences
  3. 3. Dividing Fences Dividing fences are dealt with under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The definition of dividing fence is very broad (even includes a moat) but does not include retaining walls or part of a wall that is a house, garage or other building
  4. 4. Dividing Fences • A dividing fence must be on the common boundary of adjoining land (or elsewhere if it is impracticable to construct a fence precisely on the boundary) • Neighbours must contribute equally to building and maintaining a dividing fence • Pool fences are regulated under the Building Act 1975
  5. 5. Dividing Fences If there is no sufficient dividing fence between two parcels of adjoining land, an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence. Adjoining owners are generally liable to contribute equally An adjoining owner who wants a fancy fence has to pay the difference between that and a sufficient dividing fence
  6. 6. Dividing Fences A sufficient dividing fence is: • Between 0.5m and 1.8m in height • Consists substantially of prescribed material (wood, chain wire, metal panels or rods, bricks, rendered cement, concrete blocks, hedge or other common materials) • The owners agree it is a sufficient dividing fence • QCAT decides it is a sufficient dividing fence
  7. 7. Dividing Fences Probably not a sufficient dividing fence
  8. 8. Dividing Fences Definitely not a sufficient dividing fence
  9. 9. Dividing Fences Not a sufficient dividing fence, but brilliant!
  10. 10. Dividing Fences Before you build, demolish, alter or attach something to a dividing fence and before you seek a contribution from the adjoining owner you need to: • Notify the adjoining owner (Notice to Contribute) and obtain their consent; or • Obtain an order from QCAT However, if urgent fencing work is required because the dividing fence has been destroyed or damaged and it is impracticable to give notice to the adjoining owner, you needn’t obtain their consent to restore the fence to its previous condition (but you might need to go to QCAT to get their contribution)
  11. 11. Dividing Fences In community titles schemes: • Where the dividing fence is between a lot and common property, the adjoining owners are the owner of the lot and the body corporate • Where the dividing fence is between 2 lots, the adjoining owners are the 2 lot owners • Where the dividing fence is between a lot and a property outside the scheme, the adjoining owners are the body corporate and the owner of the neighbouring property • However, a by-law can change the above obligations.
  12. 12. Trees
  13. 13. Trees Disputes about trees are also dealt with under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The definition of tree is also very broad and includes any woody perennial plant or any plant resembling a tree in form and size such as a shrub, bush, vine, bamboo, banana plant, palm or cactus. It also includes a bare trunk, a stump rooted in the land and a dead tree.
  14. 14. Trees A tree-keeper has responsibilities and obligations under the Act. You are a tree-keeper if a tree is wholly or mainly situated on your land. So, even if the tree is partly located on the boundary between two lots, if most of the tree is located on your lot, you are liable as the tree-keeper.
  15. 15. Trees If the tree is located centrally on the boundary of two or more lots, each lot owner shares the responsibilities and liabilities equally
  16. 16. Trees A tree-keeper must: • Cut and remove any branches overhanging its neighbour’s land (subject to any vegetation protection order – check at Council for those) • Ensure the tree does not cause, or is not likely to cause within the next 12 months: • Serious injury to anyone • Serious damage to the neighbour’s land or personal property • Unreasonable interference with the neighbour’s use and enjoyment of their land
  17. 17. Trees Unreasonable interference includes: • Interfering with TV or satellite reception • Interfering with proper functioning of solar panels • Shades sunlight from the window’s or roof of the neighbour’s property where tree branches are more than 2.5m above the ground • Obstructs a view that existed when the neighbour took possession of the land if the tree branches are more than 2.5m above the ground • Creates a substantial and ongoing accumulation of tree litter in their yard • Normal amounts of tree litter (dropping leaves and fruit) will not constitute unreasonable interference)
  18. 18. Trees If your neighbour’s tree has overhanging branches, the common law right of abatement entitles you to remove the overhanging parts (and you no longer need to return them to the tree-keeper) Alternatively, you can use the formal process under the Act
  19. 19. Trees The formal process applies only if the branches are extending at least 50cm from the boundary and are no more than 2.5m above the ground (for branches higher than that – QCAT) The neighbour can give the tree-keeper a Notice for removal of particular hanging branches requesting it remove the branches within (at least) 30 days The notice must include a quote for someone else to do the work The notice gives the tree-keeper permission to enter the neighbour’s land once the tree-keeper has agreed to do the work and has given the neighbour a formal response advising when the work is to be done and the name of the person doing the work
  20. 20. Trees If the time in the notice has elapsed and the tree- keeper has not responded, the neighbour may remove the branches or engage a contractor to remove them and can claim up to $300 from the tree-keeper (annually) If the costs are not paid by the tree-keeper, the neighbour can make an application to QCAT (minor debt claim)
  21. 21. Trees In a community titles scheme: • If the tree is located on a lot, the tree keeper is the owner of the lot • If the tree is located on common property, the tree keeper is the body corporate • If the tree is located on a lot outside the scheme and is affecting a lot or common property within the scheme, the neighbour is the body corporate • A by-law cannot alter the rights and obligations of tree-keepers and neighbours under the Act
  22. 22. Retaining Walls
  23. 23. Retaining Walls • A retaining wall is a structure that supports excavated or filled earth • An owner of land must not cause support to be withdrawn from any other land or building on the land (s179 Property Law Act 1979) • An infringement of s179 is actionable in nuisance. A nuisance claim may also arise under the common law • Remedies are damages and/or an injunction to stop the act threatening withdrawal of support.
  24. 24. Retaining Walls • Where land is filled without providing an adequate retaining wall and this causes soil to fall on adjoining land and/or cause damage to buildings, the owner is liable in trespass at common law (and possibly in nuisance). • Retaining walls are also subject to planning laws and may require development approval (e.g. height of more than 1 metre).
  25. 25. Retaining Walls Unlike the position with dividing fences, usually the owner who derives the greater benefit will be liable for the costs of maintaining, repairing and replacing the wall … so it’s often not clear who is responsible for maintaining retaining walls
  26. 26. Parking/Towing
  27. 27. Parking/Towing Problems: • By-laws can’t impose monetary liability on owners or occupiers • By-laws can’t be oppressive or unreasonable • Committee has to make decisions that are reasonable • Body corporate is responsible for enforcing the by-laws (and has to observe due process) • Body corporate cannot delegate its powers (so building manager cannot “enforce” by- laws)
  28. 28. Parking/Towing Problems: • Dispute resolution process in the BCCMA is not effective to resolve parking disputes: • Can’t impose fines • Can’t tow • Can’t delegate enforcement to building manager • Too slow to get an outcome – particularly ineffective for emergencies (i.e. vehicle blocking car park entry)
  29. 29. Parking/Towing
  30. 30. Parking/Towing What can be done? • Weigh up risk vs outcome: o there is a risk that if someone’s car is towed the owner will sue the body corporate for the towing cost o Reduce the risk by adopting a by- law that enables the body corporate to tow illegally parked vehicles – ensure there is a process including display of prominent signage, log registration details, give warnings before towing
  31. 31. Parking/Towing What can be done? • If an illegally parked car is owned by someone who is not an owner or tenant (or their guests) – then the validity of the by-law is irrelevant because that owner has no standing under the BCCMA
  32. 32. Parking/Towing The Building Manager’s role • Caretaking duties in respect of by-law enforcement have been eroded because of the prohibition on delegation by the body corporate • Good building managers implement systems to deal with illegally parked vehicles and the by-laws consequently never need to be “enforced”
  33. 33. Private Short-Term Letting
  34. 34. What’s the big deal? Possible higher use of common facilities by guests = greater (unaccounted) cost to body corporate
  35. 35. What’s the big deal? Possible less sense of responsibility by guests = nuisance to others
  36. 36. What’s the big deal? Guests unfamiliar with property = safety issues
  37. 37. If the Body Corporate doesn’t want short-term letting, what can it do? • Change it’s by-laws? NO CAN DO! Body Corporate Laws
  38. 38. Section 180(3) of the BCCMA: If a lot may lawfully be used for residential purposes, the by- laws cannot restrict the type of residential use. Body Corporate Laws
  39. 39. Can we amend the by-laws so short- term renters are banned from having parties and from using the pool and other facilities? NO CAN DO! Body Corporate Laws
  40. 40. Section 180(5) of the BCCMA: A by-law must not discriminate between types of occupiers. Body Corporate Laws
  41. 41. Can we impose a bond on an owner who wants to operate short-term letting in their lot and fines for renters who misbehave? NO CAN DO! Body Corporate Laws
  42. 42. Section 180(6) of the BCCMA: A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme. Body Corporate Laws
  43. 43. What can a body corporate do under the BCCMA to deal with problems arising from short-term letting? • Review by-laws • Noise • behaviour • Parking • Use of common facilities • Nuisance provisions • Dispute resolution (but timing issues!) Body Corporate Laws
  44. 44. Any Questions?

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