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Potential Legal Issues Regarding Homes & Apartments

Disclaimer: This content has been prepared by third party lawyers, not by ARAG nor by the Insurer. It is intended to provide a general guide to the subject matter and is not intended to constitute legal advice, and you should not rely on this information as a substitute for obtaining your own legal advice. If any of the below issues apply to you, then you should obtain legal advice about your specific circumstances. ARAG and the Insurer disclaim any liability for damages howsoever arising out of or in connection with the use and/or reference to any of this content.

Published on 01.07.2020.

Can an administrator be appointed to sell the home of a mentally unwell inpatient?

This may interfere with the rights of the person suffering from mental illness. If an administrator is appointed in these circumstances, this may be set aside if the person has the capacity to manage their own finances or has a relative to act in their best interests.

The retaining wall shared between my neighbour's property and my own is unequally positioned on my land. Can I claim compensation?

You may be able to seek compensation for encroachment. The amount will either be the value of the land encroached or potentially three times its value if the encroachment was intentional or negligent.

The court may consider the value of the land, any loss or damage incurred by you or the reasons why the encroachment was made.

My neighbour and I have discussed carrying out fencing work. How much do I have to pay? I am worried that they want to upgrade it as well as repair it.

Adjoining owners are equally liable to pay for fencing repairs. However, if your neighbour wishes to upgrade the fence beyond the reasonable standard of fencing required, they must pay for this additional cost.

The common area in my apartment block needs to be repaired. How can I notify the relevant people?

The common area is defined as ‘common property’. The owners corporation is under a duty to repair and maintain common property at all times.

The first thing you should do is speak to the strata committee of your strata scheme or the strata managing agent. You should let them know about the problem, what needs to be fixed and when you noticed the problem. You should also request that the issue is brought up at the next meeting.

If these methods fail, you have the option of making an application to the relevant state Tribunal (i.e. NCAT or VCAT) and requesting they make an order that the common property is repaired.

My neighbour keeps making excessive noise over the weekend when they have people over. It is against our strata scheme’s bylaws, but I am not sure who to contact.

You have a few available options to solve this problem. If you feel comfortable to do so, you should speak with your neighbour before the issue escalates. You should let them know about the problem and remind them about the bylaws in place. They may be unaware that so much sound is carrying from their apartment.

If you do not feel comfortable to raise the issue with your neighbour, or the noise persists, you should contact the strata committee of your owners corporation. If they think that the noise is an issue, they have the power to issue a notice to comply with the bylaw.

Finally, if these do not deter your neighbour from making excessive noise, your owners corporation can contact the relevant Tribunal (i.e. NCAT or VCAT) of your state to issue a penalty.

Do I need permission to renovate my apartment?

Before you commence renovations, you should refer to your strata by-laws to see if there are any specific prohibitions or rules when renovating. However, renovations considered cosmetic in nature do generally not require permission from your owners corporation. This could include things like painting your walls a different colour.

If you would like to renovate in a more significant manner, such as refurbishing your bathroom or making structural changes, you need to take additional steps. This will involve the passing of an ordinary or special resolution approving the works at a general meeting of the owners corporation (dependent on the type of works).

I feel upset with a decision that was made by my owners corporation. Is there a way that I can challenge it or share my point of view?

You can use your strata scheme’s internal dispute processes or request that the matter is addressed at a general meeting. If you would prefer to address the issue in a more private way before you do this, you can contact your strata manager.

Finally, you can approach the Tribunal in your state for a relevant order. You should seek legal advice before doing so to ensure that the Tribunal has the jurisdiction to hear the matter.

I think that the ‘no pets’ bylaw in my strata scheme is unreasonable. Can I apply to change it so that I can have a pet in my apartment?

In some recent decisions, ‘no-pets’ bylaws have been considered invalid. However, this can depend on other circumstances, such as the size of your scheme or whether you confirmed that you would not challenge the by-law when you bought into the scheme.

Whilst strata buildings have been become more pet friendly in recent times, it is still a specific by-law that relates to your strata plan, so it’s very important that you seek permission before bringing a pet into any strata building. Note that this does not relate to guide dogs or other support animals who must be allowed in a strata should you provide the appropriate documentation.

If you wish to amend the by-law, there must first be a special resolution of the owner’s corporation.

I have accidentally missed one of my home loan repayments. What is going to happen?

You will firstly receive a late payment notice. When you do, you should get into contact with your lender to discuss your situation. You may be able to apply for hardship support.

If you do not, you could be issued a default notice with 30 days to pay. You still have the option of speaking with your lender and exploring hardship options. Finally, if this is not addressed, you may be given an eviction notice and you will be asked to vacate the property.

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