I received an interesting query this week, and it is not the first time that I have been asked a similar question. The question was how does the Owners Corporation stop a person selling drugs out of a lot? Variations on this question which I have received over the years are: how do I stop a person stealing / damaging items / committing other offences including physically assaulting people when on the scheme.
While for each situation we can help your scheme look for solutions to address behavioural issues, the simple answer is that the Strata Schemes Management Act 2015 is not designed to deal regulating criminal behaviour on a scheme. Generally criminal behaviour is dealt with in NSW under the Crimes Act and the NSW Police. Unfortunately, in most of the situations where I have been asked the question, the person has been known to the Police and they were not able to be of much assistance. This should not however stop an Owners Corporation, or an owner or occupant who is affected from calling the Police, especially if they have been receiving threats or believe the situation may turn violent, and in fact I actively encourage them to do so.
What else can be done? Working within the limits of the Strata Schemes Management Act and the common law you may have one or more of the following causes of action and can take civil proceedings.
This is a common law action. It is based on a person entering and staying on your land without authority. Even if a person enters your land with authority if that authority is withdrawn they are required to leave otherwise they are trespassing. While you are entitled to use reasonable force to remove them from your land this is not recommended as you may find yourself defending an assault claim. In most cases it is best to call the Police and ask them to remove the trespasser. This is only useful if however the person is trespassing on your land. If you are a lot owner that means your lot, it does not mean on the common property unless the person was your guest and you asked them to leave the scheme. Even so, if you ask them to leave the common property the correct entity to make a trespassing claim would be the Owners Corporation not individual lot owners. If the behaviour persists you could go to the Supreme Court for orders for an injunction. This is an order that the person not enter your land again. If the order is breached it is treated as contempt of Court which the Court’s take very seriously. If the land in question is enclosed or fenced there may also be actions under the Inclosed Lands Protection Act 1901.
This can be a common law action or, better still, an action under section 153 of the Strata Schemes Management Act 2015. That section requires that a person must not use (or permit to be used) a lot or the common property in a way or for a purpose that causes a nuisance or hazard to an occupier of any other lot. If a person is regularly creating noise or a disturbance or leaving rubbish when using the common property or their lot you may be able to make an application to the NSW Civil & Administrative Tribunal (NCAT) for an order that they cease this behaviour. IF they breach this order then you can seek penalty orders against them.
Breach of By-laws
Another option is to consider the behaviour and what, if any by-laws have been breached by the behaviour. Are they behaving in a manner that causes offence? Creating undue noise? Obstructing or damaging common property? In most schemes there are by-laws that cover this type of behaviour and a notice to comply could be issued. If the behaviour occurs again after the notice to comply is served your owners corporation can seek penalty orders against the responsible person.
Contact the lot owner
If the person misbehaving is an occupant of a lot then contact the lot owner. It may be that they are renting the lot and a breach of the by-laws is also a breach of their Residential Tenancy Agreement. Although the lot owner may be reluctant to take action regular reminders of their tenants behaviour may cause them to reconsider signing a further tenancy agreement.
Consider passing by-laws that would prevent / regulate that type of behaviour
In many cases, passing a special resolution to add a security camera to the common property a by-law to regulate the use of the cameras and resulting footage is a good deterrent especially if signage is put up prominently. If the behaviour continues to happen then it can also provide valuable evidence for the Police or any later NCAT proceedings. Other actions and by-laws that could assist would be:
Passing a special resolution to add to the common property and then installing security doors on the common property entrances and pass a by-law regulating the use of security keys;
Consider restricting access to non-essential areas with a mechanism to allow people to apply for access to other areas on an as needed basis. This works well in larger schemes where access to specific floors can be programmed into security keys. For instance, if I live on level 6, parking is on basement level 1, the foyer is on the ground floor and the recreational facilities are on level 1 then it would be reasonable to generally restrict my access to those levels. While this may not stop the behaviour it limits those who are affected by it and the opportunity for poor behaviour.
Install increased lighting in problem areas and cut back any shrubs that may be used to hide this type of behaviour. Literally shining a light on the behaviour can be a great deterrent and can certainly cause it to move elsewhere.
These are just some examples of behaviour that a by-law and some additions to the common property can assist in regulating, there may be other by-laws or common property works that could better suit situations. Creativity is key.
Author – Allison Benson – Kerin Benson Lawyers