Question: Without approval, a coffee shop tenant in our mixed-use building constructed a cool room on common property. What action should the committee take against the lot owner and the tenant?
Our body corporate has commercial units on the ground floor, including a coffee shop. Without approval, the coffee shop’s tenant constructed a large cool room on common property adjacent to the cafe.
The tenant has been told that this is a problem but as it the cool room has already been constructed, they don’t seem to have a concept of the consequences.
The body corporate committee doesn’t know what to do and appears to be ignoring the matter.
What are the legal consequences of this, and what action should the committee take against the lot owner and the tenant?
Answer: Delay by the committee to take enforcement action can result in the occupier being able to keep the cool room without any formal approvals.
There is likely a by-law relevant to this circumstance in the scheme’s Community Management Statement. If so, the body corporate has a duty to enforce its by-laws and should do so by issuing the relevant contravention notice to the person that contravened the by-law (which seems to be the tenant or the occupier).
It also seems that the cool room would be an improvement to common property, which requires the consent of the committee, or body corporate at general meeting. The nature of that improvement will also dictate the type and requirements of any resolution for retrospective approval. Also, it is possible that the outcome is different if the area of common property in which the cool room has been constructed is the subject of an exclusive use by-law in favour of the coffee shop’s lot.
Delay by the committee to take enforcement action can result in the occupier being able to keep the cool room without any formal approvals. There are a few aspects that would require further legal analysis, and the body corporate should be investigating those matters to ensure the common property is able to be used and enjoyed by all and the proper approval processes are followed.
This post appears in the July 2025 edition of The QLD Strata Magazine.
Brendan Pitman
Grace Lawyers
E: brendan.pitman@gracelawyers.com.au
P: 07 5554 8560
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