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[Anonymous]

I live in a small block of 6 in NSW. I am on the Exec.

Quick background ;  the  ( secretary ) decided to help themselves to the common property courtyard. 

Firstly they got a by-law to install fold doors to open out onto the common area courtyard. So far so good (for them anyway) Their unit is the only unit that is surrounded by the courtyard.

Now the problems start; without any permission ;  paved the area outside the new doors to form a paved courtyard area, (and increase the floor area of the apartment),  installed clothes line,  erected a child safety gate  across the pathway leading into the courtyard ( really to block people out as it was always closed ),  installed planter boxes and then fitted it out with tables chairs decorations etc and used it pretty much exclusively.

It appears that everything was paid for by the O/C under the guise of a “garden maker” – also never specially resolved. SM claims small strata plans don’t follow act to a tee just in principal agreements.?

In 2011 AGM this person was told to remove most things including paving. Only a few pavers where to remain for a step. (not specially resolved) Paving still remains making a lovely area for them when the by-folds doors are open  (no other balconies in this block)

I purchased in 2014 and found out later when other EC members told me. They are sick of major disputes with this owner so i decided to get involved and follow up.

Appears SM loves this owner (renewed their contract without any agenda at last AGM. Very happy with the service the owner stated!)

After several requests initially ignored,  SM sent breach letter under 65a to lot owner.(they also chaired the AGM in 2011)   

In the letter they stated the Owner had 21 days to remove paving or the owner could apply for a motion at next AGM to have it specially resolved.  I objected stating the letter is worthless on that basis and OC already told them to remove it. They just send back silly emails defending owner saying nobody except me cares – run away.

How do I get rid of this paving. Can i simply remove it?

Its below our windows and idiot tenants have parties on it until 3am.

What sections to apply Orders under (138 I think).  Do i apply against strata plan/strata manger for fail to follow act or lot owner?
Can I use community justice centre instead to do the mediation ?.
Any advice or warnings or perpetration notes, experiences are welcome.

Thanks

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[Jimmy-T]

@gusmich said:
How do I get rid of this paving. Can i simply remove it?

This is someone else’s property, so no. You can ask the Owners Corp (in writing)  to remove it and charge the individual the cost of removal and if they fail to do so (within two months) apply for a Section 138 orders.

Its below our windows and idiot tenants have parties on it until 3am.

Then you should be asking for notices to comply and calling police for noise created after 10pm during the week and midnight on weekends.

What sections to apply Orders under (138 I think).  Do i apply against strata plan/strata manger for fail to follow act or lot owner?

Section 138 is for orders compelling the Owners Corp to do something. There is little point seeking orders against the strata manager as they only do the bidding of the Owners Corp (theoretically).

If you have the standard by-law #4  (which you probably will if the building is pre-1996), it says this:

An owner or occupier of a lot must not … use for his or her own purposes as a garden any portion of the common property.

 So you could pursue the lot owner for a breach of by-laws.

Can I use community justice centre instead to do the mediation?

Yes. Click on this link to Fair Trading’s page on mediations.

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[Anonymous]

Thanks JimmyT

Actually the SM rules the Strata Plan here, but that’s another story. We have multiple breaches under s28. Also they wont issue Notice to comply without 3 warning letters first, and after this a EC meeting is required so by this time you may as well not bother, im sure its designed that way.

To get orders from NCAT to force the owner to remove the paving under which section?

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[Sir Humphrey]

So the fence encloses an area of common property?  You could deal with that the same way as Jimmy advises for the pavers. 

If enough of the other owners or residents are annoyed about it, why not organise a regular block party to be had on that nicely paved area of common property with the planter boxes, chairs and table. Nobody could object to the residents asserting their right to reasonable use and enjoyment of the common property!

 

On the other hand: Is this an area which realistically would only ever have been used by the residents of the ground floor unit? Is there plenty of other area around the block that is more usefully and comfortably usable by all? If so, perhaps the only real problem is keeping the party going to late? Perhaps only the fence should go so that, at least in principle, anyone could stroll through, even if, in practice, only the ground floor resident would. 

At our OC we have many town house units that have blended their courtyard gardens into the surround common property. Such blending is encouraged by policy adopted by general meeting decision, with conditions, and fences are discouraged. However, if someone does want a fence, it must not go beyond the unit boundary to enclose any common property (and must conform to one of several style options). 

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[Anonymous]

Thanks PeterC.

On the other hand: Is this an area which realistically would only ever have been used by the residents of the ground floor unit?

I would say that since the owner installed by-fold doors, yes – otherwise no. They now have direct access to the area, whereas we have to use a pathway to access it. This is the only grassed area available. The OC pay to maintain it however, its still common property so a good deal for the Secretary all round.

Gate is gone now, apparently somebody broke it 🙂

Perhaps the better option is to pave an area for ourselves right outside their main bedroom window. I will give them 14 days notice on Monday.

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