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I live in a two lot strata scheme from hell. The other owner has sequestered the common area in front of their villa for exclusive use. They have installed a 1500 high grey colorbond front boundary fence which is in complete contrast to the style of the two lots. It replaces a 1500 high paling fence.
The compulsory managing agent has given approval for the front boundary fence which replaced a 1500 paling fence because an AGM in 1989 stated that the owners of each lot be responsible for the common area in front of their lot. There was no approval given for the original fence in any minutes of meetings There is no special by-law or registration of same regarding the exclusive use of the common property.
Does the lot owner have the right to build this boundary fence without permission and having a special by-law for exclusive use of common property?
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It sounds like the other owner (and Strata manager) have confused “exclusive use” and “responsibility”.
In order to have exclusive use, there must be a special resolution put at a meeting. See pages 41 and 32 of this document:
https://www.fairtrading.nsw.gov.au/biz_res/ftweb/pdfs/About_us/Publications/ft045.pdf
(presuming you are in NSW?)
“A special resolution is a vote by unit
entitlement. A motion can only be
passed by special resolution at a properly
convened general meeting, with no more
than 25% of the votes cast against it. “In a two lot strata scheme, both owners would have to agree to the special resolution regarding exclusive use (unless they have a 75% unit allocation).
By fencing the area they have pretty much given themselves exclusive use, which it seems they aren’t entitled to.
I’d go back to the Strata Manager and point these provisions out, and demand that at least part of the fence goes so you can access the area. Or, an alternative may be that the other owner, having shown a determination to treat the land as their own, be required to purchase the land from the owners (you and themselves). You’ll have to then re-survey the land to show that that land belongs to the other unit owner (once they’ve bought it), but at least you’ll be compensated for it.
Page 39 of the document linked above provides a dispute resolution scheme.
@Hamish said:
Does the lot owner have the right to build this boundary fence without permission and having a special by-law for exclusive use of common property?You have a compulsory manager appointed – presumably because of past dissent between owners. The manager pretty much takes the role of the strata committee/owners corporation and, on the face of it, can approve minor changes to common property provided they don’t breach the by-laws.
If you have a by-law about additions to the exterior of the property being in keeping with the look of the building, then they have possibly over-stepped their boundaries.
But what are we really talking about here? You have been denied access to the area in front of the other villa – but would you have ever used it anyway?
The real issue is that as part of the owners corporation, you are responsible for maintenance of an area to which you have no access. This is by no means unusual – apartment block balconies are common property but they are also exclusive use.
I would consider approaching the other owner and manager and asking them to either remove the fence or submit a by-law for exclusive use, accepting responsibility for the maintenance of the area, to which you will not object. They will allow you to do the same if you so desire.
I realise you feel as if you have been robbed in some way but this may be an opportunity to formalise an informal agreement and make the land-grabber responsible for the land they have grabbed.
And never forget the five words a lawyer loves to hear: “It’s a matter of principle.”
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