Question: If a lot owner applies for approval to have a deck constructed on their common property exclusive use area, does the Committee have the obligation or authority to require that City Council building regulations are followed? There is no mention of this authority in our by-laws.
Answer: Common property is still common property, whether it has been allocated as exclusive use or not.
The very first general function of a body corporate listed in the Act is ‘(t)he body corporate for a community titles scheme must — (a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme’.
Usually, the body corporate does this through the adoption and enforcement of by-laws which ‘…may only provide for … the administration, management and control of common property….’ and ‘…regulation of, including conditions applying to, the use and enjoyment of – … common property…’..
It’s a common misconception that the only by-laws that regulate the use of exclusive use areas of common property, are the exclusive by-laws themselves. Common property is still common property, whether it has been allocated as exclusive use or not. (As the bard would say ‘ A rose by any other name…’). Accordingly the first place to check is the ‘general’ by-laws. If there is nothing there, then check the relevant exclusive use by-law.
An exclusive use by-law may pre-authorise improvements to the exclusive use area, per section 193 of the Standard Module. Sometimes that pre-authorisation includes conditions. Absent such conditions, then section 193(3) requires the owner to obtain body corporate approval for the improvement. Any normal set of conditions is going to include conditions which require the owner to provide to the body corporate:
- evidence of approval by the local authority / private certification before the works commence; and
- evidence of compliance with the approval after the works are complete.
It is also worthy to note that the owner has to comply with all other laws, including the National Construction Code, whether the Body Corporate requires them to or not. Involving the Body Corporate before the works begin is all about stopping problems before they begin.
This post appears in Strata News #590.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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