NSW: Q&A What Happens When The Common Property is Not So Common?

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Lot owners from NSW are wondering what to do when the common areas at their established building aren’t so common.

Jump directly to the QUESTION you are after:

• QUESTION: If exclusive use of common property has not been registered and more than one year has transpired since an agreement, is the exclusive use arrangement valid?
• QUESTION: A lot owner in our small block has placed outdoor furniture on common property. Three out of our four lot owners say this is OK. Is it a matter of majority rules?
• QUESTION: Our complex has several common areas behind locked doors which are only accessible via a Strata Master Key.
• QUESTION: One particular lot owner has ‘moved into’ a section of the common areas and uses this space as their own. Do we have a right to ask the owner to either remove their items or make them available to all residents?

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Question: If exclusive use of common property has not been registered and more than one year has transpired since an agreement, is the exclusive use arrangement valid?

I own a unit in a self-managed group of 3 in a regional area of NSW. The strata scheme is using the model by-laws. However, the other 2 unit owners say the previous owner of my unit agreed that they could each have parts of the common property for their exclusive use. 

If this exclusive use of common property has not been registered for over a year, is it valid? No money has been paid to the Owners Corporation.

I have been refused access to past records. Our unit entitlements are equal.  

Answer: The only way a formal exclusive use “agreement” may be implemented is via a “common property rights” or “exclusive use” by-law.

The only way a formal exclusive use “agreement” may be implemented is via a “common property rights” or “exclusive use” by-law which must be registered on the common property certificate of title within 6 months of its passing by special resolution in a general meeting of the owners corporation.

Payment of consideration is not strictly essential but since you have been purportedly dispossessed of the common property without compensation, this would assist you in case a by-law was made and you wanted to invalidate it and it would likely be “oppressive” too.

The owners corporation cannot refuse you access to inspect the records of the owners corporation (make sure, however, you comply with the statutory procedure) and should they continue to do so, you may apply to NCAT:

188 Order to supply information or documents

1. The Tribunal may, on application by a person, order an owners corporation, strata managing agent, officer or former strata managing agent of an owners corporation to supply to the applicant information that the Tribunal considers that the owners corporation, strata managing agent, officer or former strata managing agent has wrongfully withheld from the applicant and to which the applicant is entitled under this Act.
2. The Tribunal may, on application by a person, order an owners corporation, strata managing agent, officer or former strata managing agent of an owners corporation to supply or make available to the applicant a record or document if:
   
   1. the Tribunal considers that the owners corporation, strata managing agent, officer or former strata managing agent has wrongfully failed to make the record or document available for inspection by the applicant or the applicant’s agent, and
   2. the applicant is entitled under this Act to inspect the record or document.

3. The order may specify the manner in which information is to be supplied or made available.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in the March 2021 edition of The NSW Strata Magazine.

Question: A lot owner in our small block has placed outdoor furniture on common property. Three out of our four lot owners say this is OK. Is it a matter of majority rules?

In a block of four apartments, we have two owner/occupiers and two investors with a 25% lot share each. One owner/occupier decided to place outdoor furniture in the garden next to her side door. Is it legal to have items on common property?

I have objected to this for many reasons. The other two owners say it’s okay with them. Is it a matter of majority rules here?

Answer: Strata is a majority, but I think it should be formally approved.

Strata is a majority, but I think it should be formally approved.

Unfortunately, this is common. If you’re going to have an informal agreement, someone should write to the strata and seek permission to keep a chairman on a time to time basis. The Strata should say, ‘Yep, that’s okay. But there are conditions attached’.

There are requirements for access. I think it’s 1.5 metres – I would need to look it up – for disabled wheelchairs and those sort of things to be able to get into and out of entry and exits.

I would suggest this is maybe a fight you’re going to lose because the other people don’t mind too much about it.

I will give a caution with a block of four. With blocks of two and four, strata managers are always a bit nervous about quoting because they can get upstairs versus downstairs or east side versus west side divisions. That can get really messy and political. If the other owners are okay with this, you may need to concede on that one and the strata manager should say, look, let’s put this to a meeting. You can’t just dump stuff on common property and you need to have it formally approved.

Rod Smith
The Strata Collective
E: [email protected]
P: 02 9879 3547

This post appears in Strata News #397.

Question: Our complex has several common areas behind locked doors which are only accessible via a Strata Master Key.

Our complex has several common areas behind locked doors which are only accessible via a Strata Master Key. Several owners on the Committee have been using these spaces to store personal property. What can we do to ensure fair access to this common property?

Several owners on the Committee have been using these spaces to store personal property, including household items, sporting equipment, and (apparently) commercial materials. 

There is NO lease, licence or by-law for this. The response from these Committee members is that they were “given permission” by a previous Committee chairperson. This was sometime around three (3) years ago. 

It is also claimed (variously) that this use of the spaces is a “privilege” for the time and effort of being on the Committee; OR that the spaces are not exclusive, and any owner can access them. How this occurs without a Master Key is not clear. Is there an issue here?

Any help on what to do here would be appreciated.

Answer: Use of spaces in this manner should be pursuant to a by-law or at least a general meeting resolution.

Use of spaces in the manner noted below should be pursuant to a by-law or at least a general meeting resolution.

There is no right in the act to make use of an area of common property because of services rendered to a strata committee.

The owner should put a resolution to the next general meeting that a list be provided of these spaces and the basis on which they are being used – the spaces arguably have a value for lease, licence or sale and that should be offered to all owners.

Andrew Terrell
Bright & Duggan
E: [email protected]
P: 02 9902 7100

This post appears in Strata News #392.

Question: One particular lot owner has ‘moved into’ a section of the common areas and uses this space as their own. Do we have a right to ask the owner to either remove their items or make them available to all residents?

We have a common property garden that wraps entirely around one particular unit. This area is the only outdoor common area that can be used for recreation in our medium sized strata complex. A large terrace area has been paved on the common property leading up to the entrance to this unit (I’m not sure who did this) and the owners have fully furnished the paved area with their own outdoor furniture. On the opposite side of the garden, they have installed a bbq and a bench seat so that when we go down to the garden we feel as though we are trespassing in their personal space.

We had assumed the bbq was part of the common areas, but when we tried to use the bbq, the owners came out and told us that it belongs to them and we could not use it.

We would like to be able to use the garden and outdoor terrace and have a bbq and seating in common areas that are available to everyone in the strata.

Do we have a right to ask the owners to either remove their seating and bbq or make it available to all residents?

Answer: The legal answer to this question is simple however the political answer is a minefield.

The legal answer to this question is simple however the political answer is a minefield.

Legally speaking, common property is for the use of all owners.

If an owner wishes to be conferred the ‘exclusive use’ of an area of common property, this right should be granted by way of passing a well drafted by-law containing a proper plan of their proposal. For a bylaw to be registered, an owners corporation is required to pass a motion at a general meeting by way of a special resolution. Usually, in such a situation, owners corporations would request that the applicant financially contributes for the rights to the subject area by paying the market value for the area of land. The appropriate payment amount for an exclusive use area of land is normally determined by way of a qualified valuer providing a valuation of the subject area.

I am guessing that the above steps haven’t been taken, which puts the current situation into an awkward grey area. My guess is that the current arrangement is an informal one between long standing owners. You will be able to determine if the arrangement is informal by requesting a copy of the by-laws for your strata to see if a by-law dealing with this item has been registered.

As an independent strata manager, I normally don’t allow owners to keep personal effects on common property. This includes a variety of items including pot plants, floor mats, artworks and barbecues. The reason I have this policy is to ensure that my buildings don’t end up in a situation like the one you describe.

Politically, for you to take ‘matters into your own hands’ and ask the owners to remove their items off common property might be a political disaster. I would suggest you take careful steps to resolve this issue.

That being said, I do think what is currently occurring is unfair and needs to be addressed. If you approach the matter with kindness and respect, you should (hopefully) achieve a reasonable outcome. Perhaps the first step might be to talk to your strata manager about the situation and ask what they think you should do. Strata Managers are often a wealth of information that can help with tricky political matters that require an impartial course of action.

Good luck! I hope this works out well for you.

Rod Smith
The Strata Collective
E: [email protected]
P: 02 9879 3547

This post appears in Strata News #172.

Have a question about what to do when the common areas at your established building aren’t so common or something to add to the article? Leave a comment below.

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This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

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