This question about exclusive use or special privileges bylaws in WA has been answered by Elizabeth Florence, Abode Strata.
Question: A considerable portion of common property has been annexed for the Exclusive use of 1 particular unit. Is it usual for no money or entitlements to have changed when this occurred?
Back in 2008 just after the Strata Plan was issued a considerable portion of common property was annexed, by a rule change, for the “Exclusive use” of 1 particular unit. That area was subsequently enclosed by a wall and effectively now forms part of that unit owners Lot which is leased by a business.
Going by the original Strata Entitlement information, the acquisition of that area of Common Property has not changed the lots Unit entitlement and I am unable to ascertain whether there is, or has ever been, any remuneration by way of increased portion of Levy or ex-gratia payment to the strata company?
From my reading of the documentation, it would seem that there has been no charge at any time for the annexure and use of this area and all owners are paying levies based on the total area of Common Property even though we have no access or use of the subject area.
My question – is there any obligation for this lot owner to pay rent, or a levy for the use of this area? I can find no mention of any consideration being discussed at the time of the rule change and it was done very early on when the developer and partners were the sole or majority owners.
Answer: It is possible to create bylaws in WA granting individual lot owners exclusive use and enjoyment of, or special privileges in respect of, common property or any part of it.
Please note: this response was provided prior to the proclamation of the new strata title amendments.
In brief, the rights as provided by Exclusive use bylaws are not the same as ownership and therefore unless identified as otherwise within a bylaw no fee or levy is payable to the Strata company for the use of that lot.
See Landgate – A Guide to Strata Titles – Exclusive Use or Special Privileges ByLaws
STRATA TITLES ACT 1985 – SECT 42
19.5 Exclusive use or special privileges bylaws See section 42(8) of the WA Act
It is possible to create bylaws in WA granting individual lot owners exclusive use and enjoyment of, or special privileges in respect of, common property or any part of it.
Such by-laws will usually require a clear sketch plan of the relevant part of the common property and may be subject to conditions, including obligations to maintain and repair the relevant part of the common property or may be made subject to a payment or a combination of conditions and payment.
A proprietor who would have the benefit of such a by-law must give written consent to the adoption of the bylaw (see section 42 (8) STA).
To pass a by-law relating to exclusive use and/or special privileges in a two-lot scheme a unanimous resolution is required and in any other scheme, a resolution without dissent is required.
Proprietors granted exclusive use are responsible for the repair and maintenance of their exclusive use area unless the by-law states otherwise (see section 42(11)(b) STA) 19.5.1 “For the use of” statements on strata plans
Some strata plans have notations indicating certain areas are “for the use of” particular lots.
These notations do not have any effect unless an exclusive use by-law has been lodged to support them. To lodge an exclusive use by-law, generally, the document will require a suitably dimensioned sketch plan to support the proposed by-law (note: the sketch on the strata plan cannot be used). The sketch plan is usually prepared by a licensed surveyor.
Following is the typical process for seeking an Exclusive Use bylaw:
- seek advice from an industry consultant or solicitor to obtain or prepare a dimensional sketch or detailed description of the area of common property to be affected
- apply to the Strata Council seeking application
- Obtain the prior written consent of the proprietor’s concerned – Strata Company
- The Strata Council will need to give notice of a general meeting which will consider the proposed RWD (Resolution without dissent) for the making of a Schedule 1 ByLaw and,
- Once the resolution is passed and becomes unconditional, the By-Law is to be registered at Landgate within 3 months of the date of the meeting.
NOTE only those grants of Exclusive use which are registered on the plan as an encumbrance either as a “Notification of change of By-Laws” or a “Management statement” have an effect. Always refer to the Strata Plan and Annexure, if the bylaws are not listed on the Strata Plan Annexure then they are not effective.
This post appears in Strata News #172.
Have a question or something to add to the article? Leave a comment below.
Elizabeth Florence
Abode Strata
P: 08 9368 2221
E: [email protected]
This information is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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I was interested to know the answer to this question please.
If a by-law for exclusive use is passed at the AGM does this then entitle the owner to have permission to build a patio’s etc within the exclusive use property,
If permission has been sought from the relevant council and strata company and approved – does it change the unit entitlement?
Hi Jenny
The following resppnse has been provided by Shane White, STRATA TITLE CONSULT:
A by-law for exclusive use allows the owner to use an area exclusively.
Depending on the terms and conditions of the by-law there may also be conditions to maintain, repair, replace, keep clean or pay a fee.
An exclusive use by-law doesn’t include permission to erect a structure or carry out structural alterations unless they were part of a pre-approval in the by-law.
There are various requirements in the Act and Regulations for applying to the strata company for approval to do a structural alteration.
Primarily the approval of the strata company, if building approval is also required then from the Local Council.
There are a number of different paths that could be followed:
Does the patio come under an improvement to the common property? Self funded by the owner?
Does the patio come under a sustainability infrastructure contract.
The proposal to erect a patio on the common property exclusive use area should have been presented with plans to the strata company.
Will the erection of the structure compromise the insurance policy? Is the insurer aware?
Who will maintain the patio afterwards?
The erecting of the patio on common property will not change the Unit Entitlement (UE) values unless a re-subdivision was done to include the area of common property into the Lot. Otherwise, the UE values will remain the same.
A situation has occurred at an 8 story 26 unit strata complex (1977 strata) where a number of owners have experienced problems with windows (bedroom x 2) and windows and sliding doors to balcony, probably up to 16 owners. I have been told that under the strata plan a lot owner only owns the internal space and all walls, floors, ceilings and windows are common property. I am told that the Act states that the strata company must maintain, replace, renew etc all common property. Furthermore, I am told, that you cannot make a bylaw that conflicts with any section of the Act. I can see possible problems arising if a large number of owners were to “go their own way” with this matter.
If Owners have already built patios over previous years on the common property, is the option to approve these additions is pass a by-law of exclusive use.
If a by-law for exclusive use is passed at the AGM does this then entitle the owner to have permission to build a patio’s etc within the exclusive use property,
Hi Glenda,
Thanks for emailing us outside of this forum. I have replied there as this one is a bit complex!
This was a very useful article, thank you.
If someone wanted to remove an exclusive us by-law, what would be required?
Thanks Sam! It would essentially be the exact same process!
Our strata was built in stages – the first stage was a tower sold by the developer to a sister company which leases most of it to a subsidiary entity (a hotel). The first AGM minutes show only the developer and owner of stage 1 existed and they created a bylaw that established a large special use area. Neither the owner of the lot or its tenant maintain this area although required to. The affiliated entities own more than 50% of UE and would out voted the other owners if we tried to sanction them in some way although it never gets to that point because the council is indebted to them and avoids dealing with the issue. Suggestions?
If there is no vote without decent if anybody votes no then a exclusive use bylaw isn’t passed is that correct?
Hi Ken
We have received the following response back from Elizabeth Florence, Abode Strata Management:
Correct, as noted within my response above:
To pass a by-law relating to exclusive use and/or special privileges in a two-lot scheme a unanimous resolution is required and in any other scheme, a resolution without dissent is required.
If this bylaw has been added to the landgate plans by the strata manager & the units that benefit from it 31 out of 100 , they have just wasted our strata money as this is not valid correct