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Damage to common property and rubbish left behind by tenants
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strats all
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05/08/2018 - 11:03 am
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Hello all,

Im not sure if I have posted this in the right area but here goes.

The tenants of a unit in our block have just moved out leaving a trail of destruction behind. We have had ongoing issues with these tenants and the  Earlier this week one of them reversed into a brick wall and all the way through to the property backing onto us not only destroying our wall but the fence behind it aswell. Im assuming not wanting to deal with the problems caused they have decided to move out and when moving out caused further damage breaking the entrance door windows and dislodging the handrail. They have also left couches and mattresses on common property.

This is not the first time we have had problems with tenants from that particular lot. The lot owner does not care much for his unit and will allow anyone to rent it out. Generally we end up with young tradies rooming together. The lot owner has been advised and warned on numerous occasions about his tenants breaching by laws and the rubbish and furniture they leave behind but he always ignores them.

The last time his tenants left the Owners Corporation payed for everything to be removed and cleaned up. This isn’t fair and the lot owner needs to be accountable for this since he has been negligent in managing his property (he is a real estate agent).

I have instructed the strata agent to issue the lot owner with a notice to fix the issues caused by his tenants and if he ignores the notice then we will go ahead and fix the problems up and then pursue him for the costs. Is this possible?

We do have insurance but I dont think we should be paying the excess or having to make a claim on our policy when the damage is always caused by tenants from the same property. The lot owner has always taken it for granted that the owners corporation will pay for it all so he doesnt worry about it and will just replace the old tenants with new problem tenants. 

Any advice on how to pursue the damage costs and also how to make the lot owner accountable?

Thank you

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Sir Humphrey
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05/08/2018 - 5:07 pm
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If you make an insurance claim but can identify who did the damage, the insurer might recover their costs from the culprit. More likely they won’t and might increase your premium. 

Alternatively, perhaps a better approach, you could make sure you have everything well documented with dated photos, witness statements, quotes for repairs etc then go to the tribunal seeking an order that the unit owner must pay to the owners corporation the cost of those repairs. 

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Lady Penelope
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05/08/2018 - 6:15 pm
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The insurance should cover the damage whether it was done by a tenant or an owner.

Any excess could be sheeted home to the landlord lot owner, particularly if his tenants have caused previous insurance claims.

As SH advises, if it all gets nasty and you need to go to the tribunal it is wise to document and photograph as much as you can. 

All other damage done by the tenants should be the responsibility of the landlord lot owner. The landlord lot owner is responsible for the damage caused by his tenants, visitors, invitees etc.

There is no ‘contract’ between the OC and the tenant therefore the OC cannot chase the tenant for any damages.

It is the landlord lot owner who has contracted with the OC to abide by the by-laws when he purchased his lot including the responsibility for his tenants, visitors invitees etc.

The tenant then contracts with the landlord to abide by the by-laws when they sign their lease.

If the landlord lot owner has a problem with that after he has paid the OC for the tenant’s damages, then he can always chase the tenants to collect the money that he has paid to the OC on the tenant’s behalf. That is what a bond is for, and that is why there are tenant ‘blacklists’. 

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strats all
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06/08/2018 - 10:45 am
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Thank you for the replies.

Due to the urgent nature of some of the repairs I think the way to go is to document everything, have the repairs done now by the body corporate and then pursue costs.

Going by past experiences with this landlord he is not forthcoming with any payments, he is always late on his strata levy let alone these extra payments. To try and get him to fork out the money first will be a long process. I will still give him the opportunity to fix things himself first, that way he can not say he wasn’t given the opportunity at NCAT.

Thank you

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JimmyT
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07/08/2018 - 2:10 pm
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strats all said
Due to the urgent nature of some of the repairs I think the way to go is to document everything, have the repairs done now by the body corporate and then pursue costs.

Sounds like a plan. I think it has been established in law that, in the event of a delay, the Owners Corps’ first priority is to effect repairs then find the person responsible for the damage and get them to pay for it (rather than the other way round).

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Sir Humphrey
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07/08/2018 - 7:43 pm
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JimmyT said

strats all said
Due to the urgent nature of some of the repairs I think the way to go is to document everything, have the repairs done now by the body corporate and then pursue costs.

Sounds like a plan. I think it has been established in law that, in the event of a delay, the Owners Corps’ first priority is to effect repairs then find the person responsible for the damage and get them to pay for it (rather than the other way round).  

Agreed. It demonstrates to the Tribunal that the OC takes its statutory obligation to repair and maintain the common property seriously, but that does not mean it should not then seek to recoup its reasonable costs. It needs to demonstrate that they were reasonable. Hence documentation. 

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BONNIE L
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07/08/2018 - 10:01 pm
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Hi, If I have missed something in the above, apologies.  It’s a question on what the actual fines are attached to, departing tenants, it’s thought, who recently left behind some of their heavy bulky stuff on the common property.  Any tip  would be a great help please.  Thank you.

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JimmyT
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10/08/2018 - 4:32 pm
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BONNIE L said
Hi, If I have missed something in the above, apologies.  It’s a question on what the actual fines are attached to, departing tenants, it’s thought, who recently left behind some of their heavy bulky stuff on the common property.  Any tip  would be a great help please.  Thank you.  

Not sure I understand the question but if tenants have flown the coop and left behind any kind of rubbish, you would give the landlord a reasonable opportunity to remove the detritus at their expense (five days) then charge them for the cost of the clean-up if they don’t do anything.

Also, under Section 125 of the NSW Strata Schemes Management Act, and sections 32 and 33 of the Regulations (below), the Owners corporation can give notice of disposal of abandoned goods by sale, donation or dumping.

There is a procedure for disposing of abandoned goods that are just rubbish and a slightly different one for goods that have some value.

In the former case you can just dump them, in the latter you have to put a notice on them saying they will be removed after five days. That could then be done by sale (and you’d retain the cost of the sale) or by donation to charity. Bikes are very commonly left behind and soon turn bicycle stores into dumps.  But they are also potentially suitable for sale or donation to charity.

This is what the Strata Regs say:

32   Disposal of abandoned goods: section 125 of Act

(1)  This clause applies to goods left on common property (other than motor vehicles and things permitted by the owners corporation to remain on common property).

(2)  The owners corporation may dispose of goods left on common property if:

(a)  a disposal notice has been placed on or near the goods and the goods have not been removed from the common property within the period specified in the disposal notice, or
(b)  they are perishable goods, or
(c)  they consist only of rubbish.

(3)  A disposal notice must:
(a)  not be less than the size of an A4 piece of paper, and
(b)  be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather, and
(c)  describe the goods and state the date and time the notice was issued, and
(d)  state that the goods will be disposed of if they are not removed from the common property before the date and time specified in the notice (being not earlier than 5 days after the notice was placed on or near the goods), and
(e)  specify contact details for a member of the strata committee, the strata managing agent or a delegate of the owners corporation in relation to the notice.

(4)  If the goods are so placed that they block an entrance or exit, the owners corporation may move the goods to another place on the common property before placing a disposal notice on or near the goods, and for that purpose the owners corporation is taken to be the owner of the goods.

(5)  The owners corporation may dispose of the goods by selling them or in any other lawful manner and for that purpose is taken to be the owner of the goods.

(6)  A purchaser of goods sold by an owners corporation in accordance with this clause acquires a good title to the goods freed and discharged of any interest of any person who would otherwise have an interest in the goods.

(7)  The proceeds of a sale of goods under this clause are to be paid to the administrative fund of the owners corporation.

(8)  The owners corporation must make a record of goods sold under this clause and keep the record for a period of not less than 12 months after the disposal.

(9)  The record must contain the following particulars:
(a)  a description of the goods,
(b)  the date of the sale,
(c)  the name and address of the purchaser,
(d)  if sold by auction, the address of the principal place of business of the auctioneer.

33   Tribunal may order payment of proceeds of disposal to owner

The Tribunal may, on application by the owner of goods sold by an owners corporation to another person under clause 32, order that the owners corporation pay to the owner of the goods the proceeds of the sale, less the reasonable costs incurred by the owners corporation in selling the goods.
 

SSMA 125 Disposal of abandoned goods on common property
The regulations may make provision for or with respect to the following matters:
(a) conferring power on an owners corporation to store or dispose of, or authorise
the disposal of, goods left on common property,
(b) notices to owners and other persons as to disposal or proposed disposal of
goods by an owners corporation,
(c) the passing of title to any goods on disposal by an owners corporation,
(d) the payment of the proceeds of disposal of goods by an owners corporation,
(e) conferring jurisdiction on the Tribunal to make directions and orders relating
to the disposal of goods, including orders for the payment of compensation and
as to the payment of the costs of disposing of goods. 

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