Question: Is there a statute of limitations on unauthorised changes to common property?
A unit owner has made several unauthorised changes to common property over the past years, including installing skylights, a cover over their balcony and a keypad lock to their main entrance door. The body corporate would like to reinstate all affected common property to its original state. Is there a statute of limitations preventing the body corporate from taking such action?
Answer: While there is no ‘statute of limitations’ issue, a body corporate must act reasonably in the discharge of its powers.
Unauthorised improvements to the common property by lot owners / occupiers are distressingly common. Whether through ignorance or outright avoidance, body corporate approval is often not sought when it must be.
Common property is just that, common. Each lot owner and occupier has a right to use and enjoy the common property (even if it is part of a wall or roof!) in common with every other owner and occupier. When one lot owner takes that right away by installing their improvements, they ‘oust’ their fellow lot owners and occupiers from the common property concerned; this is a very serious matter, which has been taken all the way to the High Court.
While there is no ‘statute of limitations’ issue (see the Limitation of Actions Act 1974), a body corporate must act reasonably in the discharge of its powers. The (normal) place of review for any body corporate decision on point is an adjudication application. Significantly, adjudicators have a broad equitable jurisdiction (more so than QCAT) and delay on the part of a body corporate can be relevant.
The question posed presupposes that the improvements should be removed. The normal process is for the lot owner / occupier to ask for permission; in fact, usually two permissions. The first is the authority to make the improvement. The second is to keep it there. Statutory easements may help with either or both of these permissions, as may by-laws.
Rather than proceeding to (most likely unlawfully) pull down the improvements, a better and more reasonable approach is to put the lot owner on notice that, after a search of the body corporate records, no consent/s to the making of the improvements, or the right to keep them where they are, have been given. The lot owner is then invited, within a reasonable time (at least a month), to ask for the body corporate approvals required.
If no response is received, the body corporate should consider bringing an adjudication application seeking a declaration that the requisite permissions have not been given, they were required to be given before the improvements could be made and that the improvements must be removed. If the lot owner makes the required application for consent, it must be considered properly, including at a general meeting if required (for example if a lease, licence, or grant of exclusive use is required, to keep the improvement where it is on the common property). The body corporate can then make its decision and communicate that decision to the lot owner. Often times consent can be given on reasonable conditions which address legitimate concerns the body corporate may have. If the lot owner does not accept those conditions or wishes to challenge a refusal by the body corporate to give consent, then the lot owner can bring an adjudication application seeking to overturn the body corporate’s decision. There is an abundance of adjudicator’s decisions on point, and they illustrate that each case will turn on its facts; there is a world of difference between (say) installing a TV aerial on the one hand and, on the other, fencing in 30 square metres of common property as a back yard.
This post appears in Strata News #656.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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