Question: In response to a bylaw breach, our committee has created a section in the authorisations register allowing historic encroachments onto common property. Is this the correct process?
One lot owner had breached bylaws by encroachments onto common property. A form 1 was sent to the committee who maintained the breach was too hard to deal with. They created a section in the authorisations register allowing historic encroachments onto common property.
Should the committee have registered these encroachments on the CMS? This affects schedule A and B. What is the position of the CMS now that A and B are compromised? I feel this has left the rest of the CMS, including Bylaws, in a compromised position.
Answer: The Committee cannot validly authorise an owner to encroach onto the common property.
The Committee cannot validly authorise an owner to encroach onto the common property. An owner can be authorised to use an area of the common property to the exclusion of others if a lease, licence or exclusive use is granted at a general meeting of the Body Corporate.
We note that the CMS has not been amended as regards the encroachments. Accordingly, the CMS is valid and has not been affected by the Committee’s purported authorisation of the encroachments.
In the event a resolution without dissent at a general meeting has been passed granting an owner exclusive use of an area of the common property, a new CMS must be registered within three months to reflect the grant of exclusive use. A new CMS does not need to be registered upon the grant of a lease or licence.
If an owner objects to a lease, licence or exclusive use being granted, they should address these concerns with the Committee and/or make an application to the Commissioner’s Office.
This post appears in Strata News #480.
Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000
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