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.
This post appears in Strata News #653.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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