This Q&A about boundary and common property issues in your body corporate has been answered by Peter Hunt, Mathews Hunt Legal.
Question: We are having a boundary and common property issue. We have a window garden which only we have access to. The window box is within our unit footprint but the body corp committee has informed us we need to remove it.
Are you able to clarify a boundary and common property issue we are having?
We live in a second-floor apartment and we have a window garden, completely enclosed under our roofline and tended to by us as it is inaccessible from the ground except by ladder. We have been informed that we can’t have this Buddha there as it is common property, even though nobody except us has access to it.
On the complex plans, it clearly shows that the window boxes are within our unit footprint but the body corp committee has informed us we need to remove it. Any ideas, please!
Answer: As the complex plans show that the window box is within the boundary of your lot, the area is not part of the common property unless the plans are wrong.
As the complex plans show that the window box is within the boundary of your lot, the area is not part of the common property unless the plans are wrong. The fact that the area is inaccessible except by ladder lends weight to the conclusion that the window box is not common property.
We recommend that you write to the Committee stating your position and asking the Committee to justify its position by providing a registered survey plan. If the area is part of the common property then you can seek the Committee’s approval for the Buddha as an improvement to common property. If the decision is unreasonable then that decision can be challenged.
Many schemes have a by-law that regulates the external appearance of a lot. If the area is part of your lot, the placement of the Buddha may still require approval pursuant to the by-laws. The Committee must act reasonably in enforcing the by-laws and determining whether to grant approval pursuant to the by-laws. Again, if the decision is unreasonable then that decision can be challenged.
We are seeing an increasing number of disputes about whether an area is part of a lot or the common property. It is important that these issues are promptly resolved so that owners and bodies corporate are aware of their obligations and rights in relation to these areas. One scheme we represent recently discovered that a number of lots had fenced backyards that unlawfully enclosed a significant amount of common property!
This post appears in Strata News #225.
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