QLD: Q&A Boundary and Common Property Issues

These Q&As are about boundary and common property issues in your QLD body corporate.

Table of Contents:

• QUESTION: If we are under the building format plan, are the roof and foundations the lot owner’s or the body corporate’s responsibility?
• QUESTION: Our body corporate is in a dispute over the boundaries of the common property areas. How do we ascertain the correct boundary between a new owner’s property and the body corporate common area?
• QUESTION: Without notice or my approval, the body corporate has moved my storage unit and installed cabling across my titled lot car park. Can I demand the removal of the cabling?
• QUESTION: At least ten villas in our community titles scheme have fenced-off areas of common property for their exclusive use. Some of the lots are nearly twice the allotted size. How do we reclaim this land?
• QUESTION: Our exclusive use car parking bay boundary lines are painted and are about 100 mm wide. Where is the boundary between each lot’s parking space?
• QUESTION: The other duplex owner has installed solar panels that encroach on my roof without asking permission. Can I ask that these panels be moved?
• 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.

Question: If we are under the building format plan, are the roof and foundations the lot owner’s or the body corporate’s responsibility?

Our complex has townhouses in blocks of two and four under the building format plan. We are in a block of two lots.

The building is surrounded by a private yard, so the property’s boundaries move from the building wall to the private yard boundary.

The boundary of the private yard is unlimited in depth and height, so all external maintenance is the responsibility of the owner.

I’ve been told that the roof and foundations are the body corporate’s responsibility.

Answer: Usually, the roof of a BFP is common property – it is extremely rare for it not to be.

Usually a building format plan:

1. defines the boundaries of a lot according to the structure (i.e. the walls and ceiling); and
2. is specifically limited in height and depth – which is set out in the plan.

These are key distinctions to a standard format plan.

Usually the roof of a BFP is common property – it is extremely rare for it not to be. This is set out in the Land Title Act and the Registrar Direction for the Preparation of Plans.

The only way to confirm would be to obtain specific advice after reviewing the plan.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #726.

Question: Our body corporate is in a dispute over the boundaries of the common property areas. How do we ascertain the correct boundary between a new owner’s property and the body corporate common area?

A dispute exists between a new owner and the body corporate over the boundaries of the common property area land and the new owners’ land. The new owner disputes the boundaries and maintains that his land is larger than we believe. Unfortunately, the common property area has not been surveyed since the 1990s.

Who is responsible for obtaining the services of a surveyor to ascertain the correct boundary between the new owner’s property and the body corporate common area?

Answer: reading survey plans properly and carefully can sometimes resolve the issue, especially if the reader understands the ‘rules’ for the plan.

Let’s start with the assumption that the ‘new owner’ is the owner of a lot inside the community title scheme. That means we have a potential dispute between a lot owner and the body corporate about who owns what land.

Determining title to land is one dispute that Adjudicators do not have jurisdiction to determine under Chapter 6 of the Body Corporate and Community Management Act 1997. As usual, of course, a rule such as this is often honoured as much in its breach as its observance. Adjudicators routinely ‘find’ where boundaries to lots and common property are so that rights and obligations about the land concerned can then be determined, for example, with respect to maintenance. (To be fair, the learned Adjudicators are finding the boundary, not who owns the land, but it’s a fine distinction).

If the parties to such a dispute don’t obtain their own survey (or explain the existing plan well enough!), then an Adjudicator can require one to be prepared at either or all party’s cost (but in 25 years of practice I have never seen such a request).

If the dispute relates to a fence and the location of the common boundary where that fence is to be located, then section 40 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 can be used to resolve the issue. If neither of those two options is available, then the matter is down to ‘good ‘ole horse trading’; what is fair and appropriate is what is agreed by the parties.

If agreement cannot be reached, the issue is typically resolved when the stakes get high enough at some later stage. The costs of reinstating boundary pegs can pale in comparison to (for example) the cost of drainage or structural maintenance works. Good surveyors will offer different services, with markedly different costs, but in most cases, some very simple services are all that will be required. As a final point, reading survey plans properly and carefully can sometimes resolve the issue, especially if the reader understands the ‘rules’ of the plan. The Registrar of Titles publishes those rules in the form of the Registrar of Titles Directions for the Preparation of Plans.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #688.

Question: Without notice or my approval, the body corporate has moved my storage unit and installed cabling across my titled lot car park. Can I demand the removal of the cabling?

While I was not at the premises, the body corporate moved a freestanding over bonnet storage unit in my title lot car park, drilled into the ceiling and installed cabled electricity across the 2.4 metres width of the car park. The electrical work was required for new lighting in the common property BBQ area. Does the BC have the right to do this without requesting my approval or even notifying me of the work?

Can I demand the removal of the cabling? The conduit prevents me from attaching anything to the ceiling in future.

Answer: A body corporate failing to give notice would be a ‘no no’.

One of the things about living in community title, is that it is a ‘community’ of ‘titles’. Each Kerrigan Family has their own Castle, but when you stick a bunch of castles in close proximity to each other, there has to be a bit of give and take, lest war breaks out; somewhat like the Sengoku Period in Feudal Japan (which I am reading about at present)… but I digress. This question is very specific, and as always, I’d point out that specific questions require legal advice from a properly engaged lawyer.

General questions, on the other hand, can be answered generally… and for fun! So, generally speaking, a body corporate wishing to run utility infrastructure (defined term in the Body Corporate and Community Management Act 1997) through a lot can do so by exercising the body corporate’s rights under a statutory easement for utility services and infrastructure (s115P of the Land Title Act 1994) against the lot/s and in favour of the common property. The catch is that the exercise of the rights under the easement must not unreasonably interfere with the use and enjoyment of the lot/s against which the easement lies.

I’ll come back to the ‘unreasonable’ bit in a minute because under s68 of the BCCM Act, there are also two conditions on how the easement rights may be exercised. The first condition is a repeat of the ‘unreasonable interference test’, but it also extends to include ‘no unreasonable prevention’ of the use and enjoyment of a lot or the common property. The second condition is that before a body corporate exercises the easement rights, it must give reasonable notice to the lot owner except in the case of an emergency.

So, a body corporate failing to give notice would be a ‘no no’ (albeit, as you say that two word phrase, the Palamino is already bolting over the Prairie). Likewise, if newly installed electrical cabling came at the cost of a lot owner not being able to use their lot for an existing lawful purpose, such as for storage, then there might be a case that the easement did not permit the cabling to be installed.

Adjudicators considering such disputes do, however, take a fairly pragmatic approach – a community titles scheme is not a time capsule stuck in amber. Technologies change, infrastructure demands change, and lot owners who cannot make out, with coherence and weight, how the given utility infrastructure will prevent or unreasonably interfere with the use and enjoyment of their lot, will usually have a hard time of it. For example, losing the ability to park your car and have your over bonnet storage at the same time should be enough. Losing the potential future right to hang up some ceiling mobiles on your car park ceiling, well… an Adjudicator might just see that as just a little precious. When balancing that against being able to see the BBQ well enough to avoid burning your ‘snags, or even better, making sure that chicken kebab is actually cooked, though, I’d say that public health is likely to win out.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #658.

Question: At least ten villas in our community titles scheme have fenced-off areas of common property for their exclusive use. Some of the lots are nearly twice the allotted size. How do we reclaim this land?

In our community titles scheme, we have at least ten villas that, without approval, have fenced-off common property areas for their exclusive use. Some of the lots are nearly twice the allotted size. This has been happening for many years. I only found out a few months ago when doing a Qld Globe search on one of the lots that looked a lot bigger than the same style of villa a few doors down.

The committee suggests that when these owners sell their unit, they MUST return their lot to its original plan. Can we allow these people to retain the unauthorised “exclusive use” until they sell without it being registered on the CMS? Or must it be resumed now?

Answer: The enclosed land is either common property or it is not.

Possession is 9/10ths of nothing in strata law. Taking your neighbour’s land by stealth is a strategy that has been pursued as long as we have had private land ownership.

Matters like these are, if the law is applied correctly, very straightforward. The enclosed land is either common property or it is not. If it is common property, there is either a grant of use or occupation to the lot owners concerned, or there is not. A grant of use or occupation can be, in this case, a grant of exclusive use, a lease or a licence.

Assuming there are none of those things in place, the encroaching lot owners have no right to ‘oust’ their co-owners in the common property (i.e. all other lot owners) from the enclosed land.

This straightforward analysis can sometimes be complicated by how the fences came to be in the spot they are. For example, there may be prior body corporate approval to erect the fencing. If there is, then the encroaching owners may argue that the approval to erect the fencing was also an approval to grant rights of exclusive use and occupation of the now enclosed common property. That’s a possibility, and it’s the sort of thing likely to lead a busy, soft hearted Adjudicator into (legal) error. Our High Court has upheld the rights of co-owners to the common property, and only in the clearest of cases will a body corporate approval to erect a fence also grant exclusive use, a lease or licence of the land enclosed by it.

Now, all of this being said, is it better to address the encroachments now or as owners sell? In my experience, waiting in matters like these sounds reasonable at first, but then reality steps in and buggers up the plan. Lot owners sell without removing the fence or telling their buyers it needs to be removed. Then ‘innocent’ third parties claim rights that, at law, they don’t actually have. Sadly, encroachments like this are a boil that is always better to be lanced quickly. That is almost always painful and messy, but thankfully if such incisive action is taken, relief is swift, and the body (corporate) politic can then begin to heal.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #653.

Question: Our exclusive use car parking bay boundary lines are painted and are about 100 mm wide. Where is the boundary between each lot’s parking space?

Regarding exclusive use car parking bays in Queensland.

Our boundary lines are painted and are about 100 mm wide. Is the boundary either side of the painted line, the centre of the line, or something else?

An adjoining car parking bay is being used to park a big (Harley Davidson) motorcycle at the ‘head’ of their exclusive use car parking bay, whilst trying to fit a car in the same bay. The bike was on the painted separation line. Following raising our concern, it has been moved, but the bike is still overhanging into our exclusive use bay. Are we entitled to exclusive use of the airspace, as well as the floor area? Again, is the boundary the same as whatever is deemed in the previous paragraph?

The by-laws do not provide this level of detail.

As is usual, the parking bays, whilst said to be built to Code, are ‘tight’.

Answer: You have to ask how much this situation is bothering you or what the level of risk is.

For exact detail on where each lot starts and stops you would have to look at the survey plans for your site. You may even need to ask a surveyor.

Your exclusive use area would also include the airspace of that area. In some cases, this may be up to a defined height. This may not be practical or possible, but in theory you could put a wall around your exclusive use area in order to maintain its exclusivity.

More practically, I think you have to ask how much this situation is bothering you or what the level of risk is. As you say, parking is tight and when that is the case people are going to push the boundaries.

It seems your neighbour has made an effort here and the question is whether the effort is sufficient for you. If you think the effort is reasonable then you may just want to leave the matter there. Or, if the neighbour is reasonable, you could have chat with them about why their parking is causing a problem.

If you think an accident or injury is likely to occur as a result of the parking, you should bring that to the attention of the owner and body corporate. There is no definite right next step but so far as possible, it is best to seek an amicable solution first, then reach for the law book if that fails.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #522.

Question: The other duplex owner has installed solar panels that encroach on my roof without asking permission. Can I ask that these panels be moved?

I am a lot owner in a community title duplex in SE QLD. We share a connecting wall. The other lot upgraded their solar panels on their roof, but the new system has encroached over my roof by 1 meter. They did not ask any permission from me or even advised me that they were going to have the work done. The work would have cost approximately $4000.

If the roof over both lots is common property, what are my rights to ask the other lot owners to vary the solar panel arrangement so it doesn’t come onto my lot roof area?

Answer: Are you wanting to use that roof space for your own system? Because if you’re not, why have that fight?

In this situation, if it’s common property, there can be no encroachment, because it’s common property. Whereas, if the encroachment idea is well, it’s my roof, and I should be able to use the whole space, that’s a different concept. And that’s about ‘Well, I want to put a system up and you’re using more than your fair share’. That’s a different question.

Taking up all the common property or taking up a large area of property without approval is what’s called ‘ouster’, which is an old legal doctrine that’s been around for like 1000 years in common law, it’s unlawful to do it.

At the end of the day, the fundamental question is, ‘Is it causing that lot owner a problem? Are they wanting to put up a system using that space?’ If it’s not, I can put on my I’m now a competitor to Stratum Legal hat and say, ‘Oh, that’s terrible. Let’s go and sue them and you know, give me $20,000 and I’ll beat them up for your in court’, Then I’ll put on my Stratum Legal hat and say, ‘Are you wanting to use that roof space for your own system? Because if you’re not, why have that fight?’.

Michael Kleinschmidt
Stratum Legal
E: [email protected]
P: 07 5406 1282

This post appears in Strata News #494.

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!

Peter Hunt
E: [email protected]
W: Mathews Hunt Legal

This post appears in Strata News #225.

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