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Topic
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Hello,
I am an owner occupier in an upstairs unit in a residential complex of 12 units. There are 3 units on the ground floor.
There is a piece of land of about 12 metres wide along the building. A fence separates the land from the nature strip outside. The land is common property and the 3 units on the ground floor are using this land which is adjoining their units like their private courtyard.
There is a flower bed between units 1 and 2, and it extends halfway from the fence to the building.
All the upstairs units has a juliette balcony. The balcony is common property. and access to the balcony is via the unit.
I and one other owner want to keep the land as common property. The councillors all of whom are non resident owners of upstairs units want to give exclusive use of the land to the ground floor units. They told the meeting the reason for their decision was because they do not use the land and have no intention to use it; so they may as well pass the common property to the ground floor units to look after. The strata manager gives the impression that she supports the idea. The strata gardener tidies the nature strip and the courtyard outside unit 3. Units 1 and 2 ’sweep’ the courtyard adjoining their units. They have never been asked to maintain the grounds.
The ground floor units state that in exchange for exclusive use of the courtyard they would give exclusive use of the balcony to the upstairs owners. One owner upstairs is fearful that she would have to allow passage via the balcony via her unit because the balconies are common property.
I don’t know whether the remainder of the owners are aware that the units in the ground floor want exclusive use of the land. They are usually silent and pass their proxies to the Chair or the strata manager.
This strip of land is the only open space in the complex. Unit 2 has now put a 6 seater outdoor dining table, benches and pots of plants in the courtyard, and the furniture etc. cover almost all the grounds in front of the unit. Unit 1 stores a spare kitchen sink in the courtyard and had recently fixed a large patio umbrella in the centre of the courtyard as well.
The owner who wants to keep the land common property and I had complained about the way the ground floor units were occupying the common property. The reply from the strata manager was to wait and see what the ground floor units will do next.
The council members are not interested. One councillor said that people are allowed to put furniture in the courtyard. The councillors refused to communicate directly with the other owner who also supports common use of the common property. The councillors would only communicate through the strata manager.
Is there anyway, short of going to the tribunal, to approach the situation so that the ground floor units do not occupy the common property and use the land as their private courtyard.
It is very frustrating to witness how the common property is occupied and the councillors and the strata manager refused to do anything about it.
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Replies
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You make several references to the strata council. Which state are you in?
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Would there be scope for a proposal for some shared common facility on that area that might make people perk up? Perhaps a shared BBQ and paving with some picnic tables?
Alternatively, the area could be granted to the ground floor unit owners with an increase in their unit entitlements and a consequent reduction in everyone else’s. That would mean they pay more levies and the rest pay less, though they would have greater voting rights too in a ‘poll vote’, assuming things work like that in WA.
If it were given away for nothing, a condition of the grant could be that the area be kept in good order with the OC retaining the right to require changes to the landscaping.
You would need to know what type of vote is required if the grant is formalised. In some states it is a special resolution but in the ACT an unopposed resolution is required to grant a ‘special privilege’ over common property. An alternative, if people agree, would be a less formal arrangement in which the OC resolves to allow furniture, gardening etc by the ground floor units on that area of common property subject to conditions including that those permissions can be revoked. All unit owners retain their right to use and enjoy the area, even if they would not in practice, and these permissions are not to be taken to be a grant of exclusive use. IE you might be able to find a way that allows it while still being reversible.
As for the balconies, reassure the unit owners that nobody has the right to enter their unit and nobody is likely to get up on their balcony with a ladder!