Dealing with Nuisance Owners
If you talk to any strata manager first up on a Monday morning you can usually be assured that the first half day of the working week will be spent going through all of the emails they have received on a weekend.
Strata managers are not usually trained to charge like lawyers. Perhaps that is the legal industry’s defence to the same issue?
Anyway, Tank Tower (and what an excellent community website we must say) had an owner that obviously delighted in emailing all and sundry. The decision does not expressly deal with what was being sent to the body corporate, but it does comment that the sheer volume of correspondence was not reasonable. It was said that the frequency, repetition and tone would not be what an ordinary person would view as a reasonable level.
The body corporate had a by-law that required that communications be reasonable and not a nuisance. Based on that, the Body Corporate went through the by-law breach process, and when the communications continued, it sought an order that the owner had breached that by-law and to impose rules around how ongoing communications were to be managed.
The adjudicator found this by-law was breached, but don’t panic if you don’t have a by-law like that and you find yourself in the same circumstances.
The adjudicator also considered section 167 of the Body Corporate and Community Management Act 1997 (the Act). This says ‘the occupier of a lot included … must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
One of the standing jokes we make at strata presentations is that the Act prevents actions which interfere unreasonably with others in the scheme. The Act does not prevent actions which interfere reasonably with others!
The adjudicator indicated that if the emails were being sent from within a lot in the scheme, the wider scope of section 167 may also restrict the owner’s actions. Having said that, this interpretation may make it more difficult if you had a belligerent investor owner causing issues and you had no nuisance by-law.
Obviously, under either provision, what is complained of cannot be minor, and that will depend on each individual set of circumstances.
At this building it was clear that the communications did cause a nuisance. On that basis the adjudicator did impose restrictions around the owner communicating with the body corporate. These restrictions included:
| Condition | Our comment |
| Written communications shall only be sent by pre-paid post at the address of the body corporate manager | No more emails. Emails certainly make it easier for everyone to fire off things at a whim. Taking the time and effort to put together correspondence may slow down the volume. |
| A maximum of one piece of written communication may be sent per week, unless the Body Corporate invites additional written communications. | Save the issues up and put them together. |
| Any item of written communication shall be limited to a maximum of 2-pages in length containing a maximum of 1,000 words. | The lawyer in us can’t help but think about font size and line spacing when it comes to page length, but the adjudicator cleverly captured it with a word limit. Repetitive verbosity at your own peril. |
| Verbal communications shall only be made by telephone to the body corporate manager unless the Body Corporate expressly invites verbal communications with other persons or verbal communications other than by telephone. | The body corporate manager may well need to filter calls. Direct lines remain a peril. |
| Written and verbal communication should be courteous and not abusive or offensive. | Bingo. Kindergarten rules apply. |
| The Body Corporate is permitted to disregard any communications that it reasonably considers do not comply with the above requirements. | Perfect. The Body Corporate does not even need to respond to correspondence that does not comply with the rules. |
| The Body Corporate is not required to acknowledge receipt of any written correspondence. | We see this occasionally (even for ourselves). There is no need to call us to confirm we got your email. There is no corresponding need to send a communication acknowledging receipt of correspondence – as much as some strata managers have an automatic response email to every email they are sent. Any body corporate decision is a committee one, so absent something extraordinary, most correspondence will have to wait until after the next committee meeting. |
| The Body Corporate must act reasonably in determining whether any communication requires a response, including considering whether the communication repeats matters addressed in previous communications. | This is the ‘play nice’ piece on the part of the Body Corporate. Fair enough. |
That is a pretty clear set of ground rules.
A body corporate (like anyone really) is entitled to expect communications to be reasonable, respectful, constructive, and not a nuisance. You wouldn’t think that is too much to ask in this day and age.
We also think that has potential application for communications ‘owner to owner’ or ‘owner to service contractor’ (read resident managers). The legislative provisions do not appear to apply just with respect to issues arising between an owner and a body corporate.
You can read the decision here and if anyone needs help with a problem owner, let us know.
This article was contributed by Frank Higginson – Director, Hynes Legal.
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Nice article. Useful too, so thank you.
But please note that the word “verbal” means “in words”, rather than “spoken”.
The word needed here was “oral”.
So what happens when a body corporate twice puts false information in minutes and then does not respond to emails when they have been found out?
It depends on what the consequences of the false information are. You may have rights in defamation or you can always circulate what your view is. There is nothing stopping that.
This is a great article but how do you deal with ranting and harassing emails where you have to decode them? The owner can be verbally aggressive and agitated if you don’t respond immediately. I work long hours and have come home late at night to emails where the committee is accused of NOT being legitimate, we are a bunch of thieves, demanding all maintenance STOP etc. I’ve had the police turn up where he has advised them to immediately removal me from my property in 2016 etc.
This owner will literally chase contractors around the property ordering them to stop. This owner will abuse and scream at contractors. This abuse will continue by mobile to their business.. Recently our meter board was being updated. This owner tried to stop it from being updated by forcing himself into the small room and videoing the work with live wires exposed. The electrician ordered him from the room but he ignored his pleas.
We’ve already lost one body corporate due to this owners threatening and abusive behaviour in 2017. He was removed from the committee in 2016 and a nuisance order was raised to no avail. Withing 2 days of it being raised we were asked to leave. as he sent hundreds of harassing emails to a female manager. Our new body corporate won’t assist us in dealing with him. We’ve asked to raise an EGM but the new body corporate refuses to respond. A nuisance order won’t stop this gentleman. So, what do we do now?
A few things here Lynda:-
1. You need to set the ground rules for communications. To me that would be a single address with rules around how to lay out issues. And then you address them in a timely manner after that.
2. You may well have to seek an order about the other issues with dealing with contractors and the like. You cannot physically restrain him, so in the meantime, you will need to hand hold the contractors with what may happen.
Your only scope under the BCCM Act is a nuisance order and that is where you need to start.