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Answer: While it is difficult, it is not unheard of that an exclusive use by-law be repealed.
While it is difficult, it is not unheard of that an exclusive use by-law is repealed. It is unlikely the exclusive use owner would consent to the by-law being repealed, however, the Tribunal has powers to prescribe repeal of a by-law, if, for example, an owner has unreasonably refused to consent to the terms of a proposed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: When a lot owner wants to expand into part of the common property
- NSW: Do You Need the Owners Corporation Consent to Your DA?
Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]
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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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Are you suggesting that “a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law” can only be satisfied by someone who was originally entitled? Because if that’s the currently flavour of interpretation it certainly doesn’t read that way.
Hi John
We have received the following reply from Leanne Habib, Premium Strata:
Yes, for the purposes of Section 150 but not under Section 148.
I have lived in my strata unit for 16 years. Consecutive managers have neglected the garden area- which is common property so I have added my own mulch- shells which were put down by a mentally disabled temporary tenant 10 years ago- which have worked very well- and put down fake grass over muddy areas to make them useable. I’ve also trimmed some golden cane palms which have grown significantly over the 16 years and were pressing on fences. The body corporate executive recently installed a very ugly and unwanted clothesline despite my objections. I’m now being accused of using the area as my own and the new executive, of new owners, is ‘considering’ issuing a breach notice which means they want me to turn it back into the muddy useless mess it was initially. A subcommittee was formed last year supposedly to look at introducing an exclusive use bylaw for owners who do have these small garden sections, however I’ve just been informed this is ‘no longer required’. My question is what rights do I have given the length of time I’ve lived here? DO I have any recourse to having my garden area changed to exclusive use. I am being bullied by the body corporate executive and have had more people in ‘my’ backyard in the past 6 months than in the past 16 years when privacy used to be respected. I have never before received any complaint in relation to my use of the space surrounding my unit.
Hi Julie
We have received the following comment back from Leanne Habib, Premium Strata:
You likely have a by-law to the effect of the below which is why the owners corporation might issue with a Notice to Comply/breach notice. The fact that you’ve been “using” the area for some 16 years does not specifically give you any rights to the area. There is nothing to stop you from making an application for exclusive use of the area and you will need to obtain a by-law for exclusive use from a strata lawyer – you might also wish to apply for permission to do some works so that you can close off the area. That by-law will need to be passed by a special resolution of the owners corporation. Further, to make your application more attractive to the owners corporation, you should offer to pay some compensation or valuable consideration for the area.
In terms of the clothesline, you should check the minutes of general meetings and establish whether the proper approvals were in place. As the owners corporation erected a “structure” or “added” to the common property, a special resolution should have been passed by the owners corporation in general meeting.
4 DAMAGE TO LAWNS AND PLANTS ON COMMON PROPERTY
An owner or occupier of a lot must not:
(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or
(b) use for his or her own purposes as a garden any portion of the common property.
Note: This by-law was previously by-law 15 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 16 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.
We have received the following comment on this article (via email) from Stephen, a reader:
My comment was to be that the owner who asked the question can not seek an order because under s 148 the applicant needs to be a person who was entitled to vote on the motion to create the by-law. As the owner purchased after the creation of the by-law the owner has no jurisdiction to bring the matter.
There were those who tried to have this barrier removed during the reform but as you can see those calls fell on the ears of those who view by-laws as contracts rather than property rights.
148 Order revoking amendment of by-law or reviving repealed by-law
(1) The Tribunal may, on application by a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law…..