What are the steps Bodies Corporates can take to deal with Nuisance Communication
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Hey guys, Elisha here from OMB Solicitors. Today, I’m going to be talking to you about nuisance communication, particularly with respect to the day to day management of a body corporate.
Now, quite often, volunteer committee members and our wonderful body corporate managers come across a nuisance lot owner, there’s a lot of things that you can complain about living in a body corporate; your neighbour’s got the TV up too loud, or the child downstairs is screaming in the hallway.
But there’s a fine line between when that communication and the complaints made to your volunteer committee members and body corporate managers become nuisance in itself. A couple of cases that have been handed down by the Commissioner in the Body Corporate Community Management Commissioner’s office deals particularly with this area.
So I thought, what a good opportunity to have a video podcast today to give you an idea of, what is nuisance communication and how can we deal with it? So with nuisance communication, it’s best to first look at the recent case law.
So there’s a couple of cases which can help us out in identifying what is nuisance communication. The first being Tank Tower, now, that is a little bit of an older case, but it’s quite important.
In that case, there was a lot owner who was sending voluminous amount of material to the body corporate manager and the caretaker, often several emails in a particular day and that communication was not only repetitive but also quite threatening and offensive.
So when we’re thinking about, okay, this communication has come in and it’s becoming quite repetitive, or the tone is not very nice, or it’s quite threatening in nature, have a think about what you might be able to do with that.
Another case is Deagon Village, now, that’s a more recent case. This case in particular, involved a lot owner who was sending, again, voluminous amounts of material to the body corporate manager that was both aggressive, threatening, and really the allegations that were made in that correspondence was quite baseless.
Now, often in that position, you have to think to yourself, well, what can I do about that and how can I deal with this sort of communication? Now, those cases both found that nuisance communication had occurred, and the adjudicator eventually found that certain restrictions would be imposed on that particular lot owner as to that communication.
Now, if you’re in this position and you find that you’ve got a nuisance lot owner that’s consistently harassing you, sending both voluminous, repetitive, and threatening email correspondence or telephone correspondence communications, then these are some of the things that you might need to think about.
Number one, so if you are receiving this type of communication, what can you do about it? Well, there’s a couple of tips and tricks that we recommend that you implement into your own practice as the daily management of a body corporate to ensure that you can deal with this effectively and not to utilise all the resources of the body corporate in dealing with this sort of communication.
Now, firstly, it’s important to note that in the adjudicator’s office, the ability to bring an action against an individual lot owner for nuisance communication can arrive in a couple of ways, and that is either enforcement of a bylaws.
So for example, in Tank Tower, there was a bylaw in there that said that if there was any nuisance communication, then they would essentially be in breach. Now, the body corporate relied upon that bylaw to actually commence an action.
But in that case, the Commissioner also considered the Section 167 of the Body Corporate and Community Management Act in relation to nuisance. Now, the application of that specific section is quite narrow, it basically says that if a lot owner causes nuisance or interferes unreasonably with the use or enjoyment of another lot included in the scheme, or if that nuisance communication was within or lawfully on common property, then they would be found in breach of the legislation.
However, what happens if this communication isn’t occurring in the lot property or common property, but rather, let’s say, an investor from overseas who’s got a property in the scheme. Well, their communication isn’t technically within the scheme, but it is directly related to it.
So in Tank Tower specifically, there was an issue in relation to whether or not that section actually applied. Now, this is where Deagon Village, the new case handed down by the Commissioner’s office is quite important because in Deagon Village, this was a case where there was no body corporate bylaw relating to nuisance.
So essentially the body corporate had to rely upon the provision of Section 167 of the Body Corporate Community Management Act in order to bring an action, and given the communication in that case was between a lotter and who was off site and also a caretaker, well, there was some question about the actual enforceability of that section of the act.
Nevertheless, it’s important that I identify it to you that this case was quite successful because even though the Section 167 wasn’t necessarily applicable in this situation and there was no bylaw, the adjudicator still found that number one, nuisance had occurred, and number two, that to ensure that the resources of the body corporate were being used in a way that would achieve the overall objectives of the legislation.
Then they actually found that restrictions should be imposed upon that lot owner, and these restrictions included things like the minimum word count on an email when communication can be made to the body corporate or their representative and the like, so Deagon Village is a really important authority which can really help us assist our body corporate managers and volunteer lot owners if they come into this situation.
Now, we don’t like going into adjudication if we can avoid it. So here are a couple of tips that can help you in ensuring that you avoid having to go to adjudication, but you can still deal with these nuisance lot owners.
So number one, we would recommend that if it’s not already included in your community management statement, just update your bylaws to include a nuisance bylaw, it just makes the process a lot easier. Number two is implement a communication policy within the body corporate.
If you circulate this communication policy, it’s going to give your lot owners an understanding of how you wish to communicate and what is acceptable or not.
That’s also going to assist us in any future adjudication if we need to go down that step, and of course, in the worst case scenarios, there is an option there by virtue of Deagon Village, that if you do need to take steps further, then you can seek some orders that are made in the adjudicator’s office, the Commissioner’s office.
So there’s a couple of tips to help you with dealing with these lot owners. If you have any questions at all about how to deal with nuisance lot owners, or you would like some assistance with drafting motions or amending bylaws, then we’ll be more than happy to assist you with that process.
I hope you have a wonderful day.