Question: When I purchased my unit, the seller had previously swapped garage locations with another owner. The location is not convenient. How can I determine what garage is mine?
My garage is at the opposite end of the building to my unit. All other nine garages under our building are generally directly underneath each relevant unit.
The previous owner of my unit told me he had swapped garages with the previous lot owner of another unit. Can owners agree to swap garages? Would this be a decision of the owners corporation? At settlement, I was given a hand drawn layout of the unit floor plan, including the garage – but not the location of the garage.
The garages are numbered in freehand on the basement slab. How can I determine what garage is mine, and how do I change it?
Answer: Usually, garages are depicted on the strata plan and are private property. However…
Usually, garages are depicted on the strata plan and are private property. However, in older schemes, it is not unusual for the spaces to be common property with a by-law registered allocating exclusive use thereof.
You will need to obtain a copy of the strata plan and registered by-laws to determine the position. Whether you can and how you go about changing the location of your garage will depend on the outcome of that position.
This post appears in the August 2023 edition of The NSW Strata Magazine.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
Is the holder of a exclusive use area allowed to rent this out to a 3rd party for more money than what they are paying in strata fees?
Hi Bert
This Q&A should help:
Question: I have an exclusive area attached to my lot. Can I grant a licence agreement for that area to a person without the owners corporation’s permission?
We have one owner in our strata complex who has vehicles (not been used since before Christmas) and parked on common property. This same owner had to be told to remove an unregistered vehicle from common prooerty only a couple of months ago. It’s a concern that our common property is being used as a dumping ground. Not sure if the 2 vehicles mentioned are registered or not, they have not been moved so we assume they don’t work.
Hi Gemma
This article should assist:
NSW: Disposing of Goods Abandoned on Common Property – New Laws
I notice in a few answer the idea is floated that lot owners are co-owner of the common property.
That is not quite right.
The common property is owned by the artificial entity the owners corporation.
The legislation takes the common property as a whole and treats each proprietor as having an undivided beneficial interest in every part of it, whether or not that part is susceptible of any use or enjoyment by that pro¬prietor or of greater use or enjoyment by that proprietor than by any other : Holland J.
Basically owners have beneficial interest, beneficial use and enjoyment; they do not have any ‘ownership’.
Best not to give them (owners) the idea they own common property.
Good morning, I ama confused with this reply
Question: What percentage is needed to pass an exclusive use of common property in NSW? If there are 4 owners and 3 owners were in favour (75%) and one against (25%) does the request pass?
Answer: If 3/4 of the owners vote in favour of the motion and they all have equal unit entitlements, yes, the special resolution is passed.
i had the understanding that exclusive use of common property needs unanimous vote through special resolution in NSW, with an exclusive use right by-law
I rent an apartment in a block of 42 apartments. There is a common area rooftop, however not everyone has been given a key and so it is unable to be used by everyone living in the building, defeating the purpose of a common area. Is a landlord / strata obliged to provide a key to those that are renting? Considering part of the reason many of us signed our rental agreements, is the feature of the rooftop area.
Hi Natalie
The following response has been provided by Leanne Habib, Premium Strata:
Either the rooftop is “restricted” common property or everyone (ie all residents whether owners or tenants) should be given access. Neither strata nor your landlord can discriminate against tenants.
I am in a owner /lease tenant in a residential property unit block of 3 floors. We have a common shared designated drying room on each floor. The building owner /manager has taken over the drying room on the second floor and now this is used as a storage room for maintenance personnel and for general storage with the door now locked.
Is this allowed . Can the owner take over the room and lock the room even though it was a common area.
The room was not used by anybody apparently but we were not allowed to use the room the room with gym equipment prior. Now used for storage.
Can the management change the room description and use
Hi Jim
Leanne Habib, Premium Strata has responded to your comment within this article: NSW: Q&A Exclusive Use of Common Property
I am the owner of a property lot in a complex of four units.
One of the lot owners has “exclusive use” of a large balcony that was registered with the initial strata registration when the property was transferred from private ownership to strata title for sale.
The brick balcony balustrade on the exclusive use balcony is showing signs of deterioration (cracks in mortar) with slight movement in the whole balustrade brickworks.
As the lot owner has exclusive use of the balcony is he responsible for the maintenance and repair of the balustrade..
.
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…..