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, 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 may be found in storage cupboards, carports, fire cupboards and exposed areas. The 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 the ASIC website (www.asic.gov.au) 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.
Under the OC Act, common property affected by an owners corporation is not subject to adverse possession (a claim of ownership) by another lot owner, irrespective of the period of possession (s 7C Limitations of Actions Act 1958 (Vic)), but a neighbour who is not an owner in the plan of subdivision may make a claim.
Approval for the installation of individual water meters is obtained by a majority vote of the committee or the owners corporation. Where a complex is served by one meter, the water authority will often apportion charges equally among lots. The owners corporation may pass an ordinary resolution that consumption be levied according to lot liability. The authority must be notified in writing with the schedule of lot liability included (s 24 Water Industry Act 1994 (Vic)).
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 in sections 4 or 6 of the OC Act. The owners corporation does not have representative capacity to object on behalf of owners whose interests are affected by the planning proposal. Ordinarily, an owners corporation will not have any proprietary interest that is adversely affected by a planning application.
However, in the event that the owners corporation objects and the matter ultimately proceeds to VCAT, the likelihood is slim that the owners corporation would be at risk of an adverse costs order. Section 109(1) of the VCAT Act makes it clear that there is a presumption that each party bears its own costs. VCAT may make an order awarding costs if satisfied that it is fair to do so, having regard to factors listed in section 109(3).
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.