Goods abandoned on Common Property

Each week we will examine a key aspect of the changes. We delve into the changes in more detail so Owners Corporations Managers and Committees can be prepared and understand their rights and obligations. This week we are looking at Owners Corporations dealing with abandoned goods on common property

Our earlier blog gave a summary of the changes to the Owners Corporations Act 2006 which commence on 1 December 2021 as a result of the passing of The Owners Corporations and Other Acts Amendment Act 2021. It is available on our website.

Current position

It has been difficult for Owners Corporations to remove goods which are left or stored on Common Property. Usually, the Owners Corporation must rely upon a breach of the Owners Corporations rules. This involves issuing a breach notice and final breach notice and then taking legal action at the Victorian Civil and Administrative Tribunal. The problem with this is that the process can be costly and disproportionate to the issue. A common example, might be when a lot owner keeps an couch or outdoor setting in part of the common property and refuses to move it to their private lot property. Owners Corporations may find it difficult to justify spending the costs associated with issuing proceedings.

What’s changing

The amendments provide a comprehensive process and procedure to deal with private lot chattels which are on common property from 1 December 2021. This is great news for Owners Corporations, their committees and managers. So how does it work?

The amendments allow an Owners Corporation to dispose of goods abandoned on the common property provided that that following the procedure already set out in the Australian Consumer Law and Fair Trading Act 2012 as varied by the amendments. Owners Corporations must provide a notice of their intention to dispose of the abandoned goods. That notice must be in writing and include—

(a)   the plan number and address of the owners corporation; and

(b)   a description of the goods; and

(c)   an address at which the goods may be collected; and

(d)   a statement that on or after a specified date the goods will be disposed of by the owners corporation unless the goods are collected; and

(e)   a statement that the owners corporation will retain from the proceeds of sale of the goods an amount not exceeding the cost to dispose of the goods.

A notice of intention may be given to the person who abandoned the goods personally or left at, or sent by post to, the person’s last known address.

A notice to a person with a publicly registered interest in the abandoned goods is taken to have been given if it has been sent by post to the person’s address in the register in which the interest is registered. This means that for serial numbered goods (such as cars, boats etc) or goods for which the Owners Corporation knows is owned by a specific person, the Owners Corporation must obtain a search on the Personal Property Securities Register to see whether or not any party has a secured interest in the goods to be disposed of. If so, the Owners Corporation must notify such parties.

Before disposing of the goods, an owners corporation may move the goods to a safe place, if—

(a)     the goods block reasonable access to a lot or the common property; and

(b)     the owners corporation has made a reasonable attempt to locate or communicate with the person who abandoned the goods in order to give the person a notice of intention to dispose of abandoned goods.

An owners corporation must not dispose of the goods if—

(a)     a dispute exists between the person who abandoned the goods and the owners  to the goods; and

(b)     an application has been made to VCAT by the owners corporation in relation to the dispute.

An owners corporation that disposes of goods under this Division is not liable in relation to the goods by reason of the disposal.

Whilst, there is a defined process, it is important that Owners Corporations receive legal advice prior to disposing of any goods with any value. Whilst Owners Corporations will not be liable for disposing of goods, this protection from claims only arises where the Owners Corporation has followed the process correctly.

Need Advice ?

Phillip Leaman, principal of the Owners Corporations practice group of Tisher Liner FC Law and his very experienced team can provide assistance to owners corporations, committees, lot owners and managers in a range of owners corporations legal matters. We have substantial experience advising Owners Corporations on dealing with lot owners that feel that they can use and abuse common property to the detriment of the enjoyment of common property by other lot owners.

We believe Owners Corporations want to maintain peaceful, functional living environments for owners. Our mission is to provide a fresh perspective on resolving legal disputes and to inspire Owners Corporations to achieve outcomes that preserves the value of assets and restores harmony. We are expert Owners Corporations lawyers.

For advice or assistance, please contact Phillip Leaman on 8600 9314 or by email.

To see earlier spotlights on the amendments check out our website. Our website also has more information on Owners Corporations as well as a range of helpful blogs and podcasts.