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.
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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.
Read More:
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Peter Hunt
E: [email protected]
W: Mathews Hunt Legal
Visit Maintenance and Common Property OR Strata Legislation Queensland
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we are owners in a small 14 lot development the lots are approximately 1000sqmtrs , each lot has a 3mtr common property easement between each lot , we have had on going troubles for over 18 months and despite issuing form 10s to 3 lot owners the committee disregards them as it is the committee executive that are the recipients of the form 10 s . there are no exclusive rites to the common property under the CMS statement , they have now come up with a register of use of the common property to their benefit , we have decided to sell to get away from this type of behaviour that this dysfunctional committee promotes , which has now led to another issue that the QLD Office of Fair Trading has advised our estate agent to remove him self from our intending sale , we have reduced the price quite a few thousand below the original purchase price , it is now classed as unsalable land , as the committee members have encroachments all over the estate including house buildings ,fences that take all the common property up no access, walkways where no access is allowed to common land. it is near impossible to sell this land
We have an issue that has just arisen following a Building Health and Safety report on our apartment block. An area to the side of the stairs leading from the basement garage to the apartments is classified as common area. On the Subdivision Plan it is noted as Storage Area, while on the architect plans, which owners were given, the same area is noted as Bike storage.
The Building Health and Safety Inspector deemed that the bikes stored in that area constitute a low level risk and recommended that the bikes be relocated. The few bikes stored there do not in any way obstruct the stairway and are located within a recess mostly behind a separation wall. Relocation into the garage area leaves the bikes vulnerable to theft, a common occurrence in other apartment buildings.
Our BC Manager insists that the Sub-division Plan, showing the area as only ‘storage’, therefore Common Area, overrides the more detailed architect plan for ‘Bike area’, bikes being classed as personal items, and that we have to comply with the recommendation.
Is there a need for the Owners to reclassify the area into a bike storage area if we wish to continue using it as a bike storage area?