The impact of trespass to land and driveway obstruction by a motor vehicle may range from temporary nuisance to major disruption, and self-help mechanisms such as the attachment of wheel clamps, obstructing or otherwise detaining an offending vehicle or demanding payment for the release of that vehicle is an offence under the Road Safety Act 1986 (Vic) (‘RS Act’). The model rules also prohibit obstruction of common property.
Police officers, council officers and the owners corporation will not be involved with illegal parking on private land unless the offending vehicle is blocking a driveway and obstructing traffic. The local council can remove an abandoned vehicle on private land.
Parking in the private car space of another person presents difficulties. VicRoads will not provide the name of the registered owner on grounds of privacy. Though an owner or occupier may remove a trespassing vehicle from their property to a place within a reasonable distance from the subject land, such person(s) are liable for any damage to the vehicle or the possibility of charges for theft or interference with a vehicle under section 70 of the RS Act.
Other options include the installation of lockable metal barriers where the problem is frequent, or a notice placed on the vehicle that threatens legal action. Do not lift the windscreen wiper for fear of a claim of interference. Alternatively, commence proceedings in the Magistrates’ Court of Victoria. In such event, photographic evidence of the trespass and/or a witness is advised.
The owners corporation may enter into a parking area agreement with the local council to enforce parking restrictions; however, this option is not available in certain controlled situations, such as underground parking.
Abandoned goods on common property
Abandoned goods may be found in storage cupboards, carports, fire cupboards and exposed areas. The Owners Corporations Act 2006 (Vic) (‘OC Act’) does not make provision for dealing with abandoned goods on common property. The issue for the owners corporation is to locate the owner of the goods, deal with valuable items and remove items that have no value. The owners corporation is not responsible for goods left on private property.
All reasonable steps should be taken to identify the owner of the goods. Investigative steps include contacting police to determine if a vehicle is stolen or searching the Personal Property Securities Register on ASIC’s website to ascertain if there is a security interest on identifiable property. If the goods belong to a lot owner, a notice specifying a removal period should be provided. An application to VCAT may be made for orders to deal with valuable goods including the destruction, sale and remittance of funds to the State Revenue Office under unclaimed revenue legislation.
All goods should be photographed. Dispose of goods that have no value. Advertise goods of value by placing a notice in a clear waterproof sleeve in a prominent location advising that the goods will be removed if not claimed within 14 days. Thereafter, store items in a protected location until VCAT determines the application.
Adverse possession of common property
Under the OC Act, common property affected by an owners corporation is not subject to adverse possession (i.e. a claim of ownership) by another lot owner, irrespective of the period of possession (s 7C Limitation of Actions Act 1958 (Vic)). However, a neighbour who is not an owner in the plan of subdivision may make a claim.
It is not generally appropriate for an owners corporation to lodge an objection to a planning permit, as that is not a function or power conferred by the OC Act (ss 4, 6). Ordinarily, an owners corporation will not have any proprietary interest that is adversely affected by a planning application.
However, if an owners corporation objects and the matter proceeds to VCAT, it is unlikely that the owners corporation would receive an adverse costs order. The Victorian Civil and Administrative Tribunal Act 1998 (Vic) (s 109(1)) makes it clear that there is a presumption that each party bears its own costs. VCAT may award costs if satisfied that it is fair to do so, considering the factors listed in section 109(3).
Equal Opportunity Act
Owners corporations have legal obligations under the Equal Opportunity Act 2010 (Vic) to address complaints of discrimination, sexual harassment or victimisation, and to take action to prevent their occurrence.
An owners corporation must make reasonable adjustments to allow a person with a disability to access and use common property. An owners corporation must also make reasonable alterations on request and at their cost to meet special needs (s 56). Reinstatement provisions apply.
Legal professional privilege
Consider a dispute between a lot owner and the owners corporation about the ingress of water into the property of the lot owner. In this scenario, the parties may rely on expensive expert reports. If the owners corporation commissioned a report in the course of a VCAT proceeding, could the affected lot owner request a copy?
An owners corporation may oppose by claiming legal professional privilege, a principle that confidentiality between a lawyer and his client outweighs the public interest of the court’s access to all the relevant material for decision. The High Court has stated that legal professional privilege is an important common law immunity that will not be taken to have been abrogated by statute in the absence of clear words or necessary implication to that effect.
As the OC Act does not abrogate legal professional privilege, it is clear that the report is privileged. This may seem a unique situation given that the lot owner is a member of the owners corporation. It is submitted that this situation is no different to the relationship between a company and a shareholder.
The lot owner might seek an order under section 168(c) of the OC Act for exclusion from such contribution.
Communication (written or oral) about a person that lowers that person’s reputation in the eyes of the public, if untrue, may be defamatory. At any meeting of an owners corporation, lot owners may freely express legitimate concerns about the conduct of other lot owners or committee members, but they must not act in a malicious manner that is intended to ridicule and humiliate. Damages for improper conduct can be considerable.