QLD: Can a committee convert a common property area to a restricted area and deny lot owner access?

Question: Can a committee change a common property area to a “restricted” area preventing lot owner’s access?

Can a committee, when drawing up new by-laws, change a common property area to a “restricted “ area preventing lot owner’s access? Should this be decided as a motion vote without decent?

If the motion passes, does the committee have a right to restrict lot owner access to this area?

In our situation, this is to increase the caretaker’s area to store ever-increasing piles of junk and his nursery. Besides carrying out work for our body corporate, the caretaker also contracts his services out to other landscaping businesses and uses this area for his storage.

Answer: Common property is ‘common’ to all owners and taking away the rights of some to use it is very heavily regulated.

There are a few moving parts to this one.

I think the fundamental starting point is that common property is ‘common’ to all owners and taking away the rights of some to use it is very heavily regulated. The traditional way to grant the rights to some to use common property ahead of others is a grant of exclusive use – which you usually see for car parks and courtyards. That attaches to a lot and is only granted by a resolution without dissent. That means no one votes against it.

After that, a body corporate can grant the rights to use common property areas by lease or licence. Depending on which module you are in, a grant of anything longer than 3 years is usually a special resolution but if it is for more than 10 years, you are in exclusive use territory. You don’t normally see these grants to owners but to third parties on commercial terms – like a telecommunications provider or the like.

The last way is to grant an occupation authority. This can only be granted to the holder of management rights for purposes associated with the management rights business and then it attaches to the management rights agreement. It comes to an end when the agreement does and a grant of this nature isn’t necessarily always exclusive.

So, on the below:-

1. I think it highly unlikely the committee can grant the right to use the area; and
2. I doubt that any grant can extend to the caretaker under an occupation authority if the area is being used for purposes not associated with the management rights business.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500