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Topic
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Common Property Occupation and Possibility of “Adverse Possession”
The unit complex consists of 3 individual, 3 story buildings with combined 40+ strata units.
The ground level units have external paved terrace/patio areas some of which are enclosed with fencing & gate; others not fully enclosed and others with fully enclosing planter/garden boxes. Beyond these spaces is a common property area which extends out to the main property boundary fence, adjoining other neighbours.
In some places this common property is in the order of 4 meters wide and consists of graveled access path and garden strip. Whilst in other parts it might be only 2 meters wide (especially in a confined corner section) which was not developed in any significant way when originally build in the early 1980’s.
In this latter area, the ground level owners or tenants have taken some interest in the area and basically extended their livable area out into this space. This has been noticed by way of plantings (lemon tree + shrubs), small fences (presumably to contain pets) and other “improvements”.
Formal permission for this has not been sought by owners, nor permission granted by the Strata Committee.
On a prima-facie basis there is no issue with this activity, except if there is need for access for say building maintenance or other necessary reasons which may cause conflict. It is not seen as interfering with the general enjoyment of the complex by other owners or visitors.
Should the Strata Committee notify each owner formally that they are wrongfully occupying common property and they have an obligation to return the common property to a certain standard, at the owner’s expense if formally requested at any time by the Strata Committee?
&/Or: should the Strata Commitee require access, but not necessarily restitution to original condition, then any damage/or removal of “improvements” is at the owner’s expense?
As noted, this situation is not currently causing an issue, however, should there be Special Resolutions passed to protect the Strata?
Given this situation has been happening for quite a number of years, possibly since 1990’s, is there a risk that an owner or owners could claim “Adverse Possession” of the land adjoining their property and be successful?
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Replies
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I have heard of tribunals awarding residents permanent use of chunks of common property on the grounds that they have been using it for years anyway – I don’t know if that counts as adverse possession or not.
The problem is that, while this hasn’t been a problem so far, it doesn’t mean it won’t be in the future.
My thought would be to have a polite chat with the owner to ask them if they would like to lease the property and then impose a few conditions on the deal, such as right of entry in the event of work needing to be done on common property, or a commitment to its upkeep to an acceptable standard.
I think if this was approached from the point of view that nothing needs to change except that the ownership of the area needs to be stablished, that might get a positive response.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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