Legal Q&A with Despina Priala

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Despina Priala advises on how accountable you are if your tenant damages neighbours’ properties 

Q: Turns out my last tenant was a bit of a bully. He was harassing the neighbours and doing damage to their properties. I would have evicted him, except that he did a midnight runner on the property anyway, leaving damage in my property too.
The property is within a block of units and now the neighbours are saying I must compensate them for the damage. They say he smashed some of the windows in the communal staircase and threw bricks into some neighbours’ balcony windows.
My initial response has been to ignore the calls, but lately I’ve started worrying about it. Is there any way I could be held accountable for damage my tenant caused?
A: The question here is whether or not an owner of a unit within a body corporate/strata title scheme can be held responsible for tenant wrong doing. Every body corporate is governed by certain legislation. In Queensland this legislation is referred to as the Body Corporate and Community Management Act 1997 (“the Qld Act”). In NSW there is the strata scheme legislation (Strata Schemes Management Act 1996) which holds similar provisions.
This legislation provides for a variety of issues to deal with community or communal living within a body corporate. This includes providing a standard set of rules, commonly  referred to as by-laws, that each owner and occupier must abide by. 
In addition to the standard by-laws the Qld Act provides that “the occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that:
(a)  causes a nuisance or hazard
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property”
If these by-laws are breached the body corporate can issue a contravention notice requesting that the breach be remedied.  If the breach is not remedied penalties may apply. If the breach is a persistent breach and the required notices have been given by the body corporate, the body corporate may institute proceedings in the Magistrates Court.
Under the Qld Act an “occupier” is defined to include a “resident owner or resident lessee of the lot, or someone else who lives on the lot”. Therefore, occupier includes an owner’s tenants.
In terms of whether an owner can be responsible for breach of the by-laws and/or the legislation by its tenants one must turn to the words used in the Qld Act, that of “an occupier of a lot must not use or permit the use of…”.
Clearly, owners can be held responsible for the actions of their permitted occupiers, such as tenants, their guests and invitees.
However, it is important to correctly ascertain whether in fact the damage caused to the communal staircase and in this case, other neighbour’s lots, was in fact caused by the owner’s tenants. Some bodies corporate have established video cameras within communal areas to target specific damage caused and to identify the parties concerned.
If it can be clearly established that this owner’s tenants were the ones responsible for the damage, then I think it is clear that in the first instance the tenant is responsible, and secondly the owner. In this case, the tenant has fled and cannot be found. Therefore, it appears that the owner must  bear the full responsibility.
It is also important to note however that insurance taken out by the body corporate for such communal areas may in fact cover the damage sustained. 
Disclaimer: The information in this article is of a general nature only and should not be relied upon as legal advice. You should seek advice for you particular circumstances before entering into any transaction.
Despina Priala | Your Investment Property

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  • Frank says on 25/05/2016 01:58:16 PM

    'If these by-laws are breached the body corporate can issue a contravention notice requesting that the breach be remedied.'

    If the owner was not notified by the due process, then it's a long bow to assume the owner must pay for damage done by a rogue tenant.

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