NSW: Q&A Exclusive use of common property. No access! Really…..?

A lot owner from NSW has a question about a neighbouring lot owner who has Exclusive use of common property. Leanne Habib, Premium Strata provides the following response.

Question: Before I owned my apartment, another lot owner was given exclusive use of common property. The area is quite large and I’m perturbed I no longer have access. Is there anything I can do?

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We are a small strata in NSW.

I became the owner of one of the lots in June 2015.

I became aware that, a few years prior to my purchase, one of the other lots was given exclusive use of common property. The area is quite large. It was apparently overgrown and had been left unattended for many years.

The lot owner has certainly done a great job and turned the area into a very nice garden with paving, decking, and even a studio. All these things were approved by the strata.

My beef is that I can not access this area and I do not think it is right.

I have a unit entitlement of 22, the exclusive use lot owner 23 and the majority owner 55.

All three lot owners in 2013 voted for the exclusive use.

I have tried to persuade the majority owner (55%) that we should try and get it back. The majority owner says he supported the exclusive use then and he supports it now because the lot owner has fulfilled all the conditions of the bylaw and reckons he has done a great job.

Is there anything I can do?

I take it that if the bylaw has been passed (in fact all three owners passed it at the time) then it is unlikely that NCAT would, or even could, remove the exclusive use provisions.

I have read on many legal sites that unless the bylaw was passed under suspect conditions eg a developer holding 75%+ of the entitlement then essentially it is a case of “well if that is what the owners wanted at the time then that is what they have got”.

Is that how you see it…in its most simplistic terms?

Answer: While it is difficult, it is not unheard of that an exclusive use by-law be repealed.

While it is difficult, it is not unheard of that an exclusive use by-law is repealed. It is unlikely the exclusive use owner would consent to the by-law being repealed, however, the Tribunal has powers to prescribe repeal of a by-law, if, for example, an owner has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law.

You mention nothing of the exclusive use owner having paid for this large and presumably valuable area. This may be a ground for challenge of the by-law. The Owners Corporation should theoretically have been (and indirectly, the owners) compensated for the loss of this property which all the lot owners own in proportion to their unit entitlements.

You may have grounds to challenge, and, if successful, invalidate the by-law.

Mediation would need to occur first and we recommend engaging a strata lawyer to weigh your prospects of success.

This post appears in Strata News #187.

Read Next:

• NSW: Q&A What Happens When The Common Areas Are Not So Common?
• NSW: Do You Need the Owners Corporation Consent to Your DA?

Leanne Habib
Premium Strata
P: 02 9281 6440
E: info@premiumstrata.com.au
You can connect with Leanne & Premium Strata on Facebook, Twitter & LinkedIn.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Visit our FactSheet: Maintenance and Common Property OR FactSheet: Strata Legislation NSW.

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