Question: We have a common property storage area shared by all lot owners. One lot owner takes up over half of the space. How can we ensure everyone has fair use of the space?
I own a unit in a complex of 4 lots. There is a common property room behind the shared laundry room which is currently being used as a storage area by the owners.
One owner is taking up 60% of the space with items densely packed on top of each other, making it hard to access the common property. The other 3 owners utilise the remaining 40% of the space between themselves. There is no existing by-law justifying the one unit’s unequal use of this common property.
I would like to propose a fair and equal use of the area, by installing strong storage shelves and allocating 25% of them to each unit owner. This would also provide safe access to all of the items with a decent walkway space.
What is the best way to have this agreed upon and enforced at an AGM? Would some kind of by-law need to be created and voted on?
If there is no way to do this sharing proposal or it gets voted down, how can we at least tackle the obstruction of the common property element this one unit is causing?
Answer: Lot owners are co-owners of the common property and this means no lot owner can exclude another from using a common property area unless there is a common property rights by-law.
Exclusive use of common property areas such as storage can be granted to lot owners under a common property rights by-law (also known as an exclusive use by-law).
Exclusive use means one person has use of a particular area to the exclusion of others and in the context of strata, this is achieved by passing a common property rights by-law under the Part 7 Division 3 of the Strata Schemes Management Act 2015 (SSMA 2015). The lot owner gaining exclusive use must provide their written consent to the by-law before the general meeting that passes the by-law and the by-law must be approved by a special resolution.
If a common property rights by-law is voted down by a general meeting then the owners corporation and other lot owners could take legal action to stop the offending lot owner using more than their fair share of the store room.
Generally speaking, lot owners are co-owners of the common property and this means no lot owner can exclude another from using a common property area unless there is a common property rights by-law. A lot owner who exclusively uses common property without such a by-law so that other lot owners cannot use the area is arguably committing a legal wrong.
The lot owner would be breaching section 153 (1)(b) of the SSMA 2015 which provides to the effect that a lot owner or occupier must not use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the owner or occupier of any other lot.
The lot owner would also be breaching model by-law 4 which provides to the effect that an owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis.
A breach of section 153(1)(b) and model by-law 4 should entitle both the owners corporation and other lot owners to seek an order from NCAT to restrain the offending lot owner exclusively using the common property area without an exclusive use by-law.
This post appears in the September 2021 edition of The NSW Strata Magazine.
Carlo Fini
Lawyer (NSW)
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