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
- 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.
- 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:
- 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
- the applicant is entitled under this Act to inspect the record or document.
This post appears in the March 2021 edition of The NSW Strata Magazine.
Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440