Current Page

[missfeather]

HELP! Seeking approval in retrospect for Exclusive Use encroachment (and more)

Hello everyone

This is my first post.  We have a serious problem and we’d really appreciate any advice.  It’s a complicated series of events so I’ll break it down as clearly as possible.

Our new neighbour (Lot B) is claiming we are encroaching on her exclusive use area according to the Exclusive Use Plan in the Community Management Statement (CMS). 

It is mutually understood that it was the previous owner of her Lot B that placed a fence in such a way as to create an boundary onto his (now her) own exclusive use area that doesn’t reflect where the boundary should be according to the CMS.

1.  In April 2017, we purchased a “free standing” townhouse in complex of 18, (Lot A).

2.  The THEN owner next door (Lot B) had built a fence to keep his dog in.  He built the fence along an existing retaining wall but this wall and fence did not follow the Exclusive Use boundary line on the CMS.

3.  The fence is built so that it encroached on HIS (previous owner Lot B) exclusive use area (effectively, he willingly built a fence which reduced his yard size).

4.  The previous owners of our Lot (A) subsequently laid a concrete slab onto their side of the area.

5.  First: The retaining wall was put in by Body Corporate.  

6.  Second :The fence was put in by the previous Lot (B) owner (without approval)

7.  Third: The slab was put in by our previous owner (Lot A) (without approval)

8.  These modifications were done over the last 10 years, Lot B’s fence was build some 7 years ago.

9.  At NO point has there been any dispute between the THEN owners of Lots A and B or from the Body Corporate in all this time until the CURRENT/NEW owner of Lot B has brought it to everyone’s attention.

10.  Essentially, both previous owners of Lots A and B were totally happy with the structures given they’re the ones who installed them.

Again, the owner who put the fence in, which reduces the exclusive use area of Lot B, was the owner of Lot B at the time.  So, Lot A benefits by having an extra area which was made available to them (informally) by the owner of Lot B (who’s area is being encroached upon). 

1. Essentially, Lot B’s previous owner built a structure that encroaches upon his own area
2. So, to further complicate things:
3. On Dec 10, we, owners of Lot A, were made aware of the problem via gossip from a neighbour who mentioned there was “an issue” with the fence line between Lots A and B – THIS IS THE FIRST WE HEARD ABOUT IT.
4. The new owner of Lot B (who’s contract closed on 29 Nov), did not tell us about this situation and has since admitted her solicitor prepared a letter for her to give us before she became an owner but she decided not to give it to us.
5. We have also learned that the new owner spoke to our BC Manager about this situation back in early October. 
6. The BC Manager neglected to bring the situation to our attention when she first new back in early October.  She had 7 weeks in which she could have told us – 5 of which would have enabled us to change the exclusive use boundary in the CMS before the Lot B was sold.
7. If we had known about this situation before Lot B was sold, we would have approached the THEN owner Lot B to redraw the Exclusive Use boundary – this whole situation would have been avoided.  We suspect the new owner deliberately didn’t bring this to our attention before she became an owner because she knew we could have made this change – this is why we found out via gossip!
8. The BC Manager conducted investigations into the situation in December but again, neglected to tell us (the owners!!!) about the situation.
9. It seems everyone knew about this but nobody was going to tell us, including the new owner!  As I said, we found out by gossip on Dec 10!
10. On December 15 (one day after a verbal discussion from the new owner of Lot B that she intended to remove the fence between our properties and wanted us to vacate the area), we approached the Strata Management to discuss the matter.
11. It became evident that due process had not been followed – for example, the new owner had no written consent to conduct works.
12. The Strata Management sent and email to the Committee and the new owner of Lot B instructing to cease all works pending further investigation when their office reopened after Xmas and New Years – 4 Jan 2018.
13. On Monday 18 Dec, the new owner left a nasty letter on our doorstep advising she would commence removing fence next day (Tuesday)
14. We tried to communicate with Committee but nobody would speak to us.
15. The Secretary of the Committee resigned
16. We attempted self-resolution with owner Lot B via calm and reasonable letter requested she cease works pending further investigation and citing by-law 40 (d) where an owner cannot conduct any works (whatsoever) without written consent from Committee (which she does not have)
17. Tuesday morning owner Lot B bashing on our door (we didn’t answer as she’s quite aggressive and other owners are not keen on her either) then we hear her tearing down the fence with a crow bar.
18. We calmly reminded her she is not permitted to do so but she insisted otherwise.
19. We felt threatened and intimidated and so called police – especially as we were receiving no help from BCCommittee and she was ignoring their instructions to cease works anyway
20. Police asked her to cease and desist – she finally did but it took half an hour to calm her down – all the while she had continued to rip down fence palings which police were speaking with her.
21. During altercation, Owner Lot B knocked on doors of Committee members and brought them down to the yard.  The were quite shocked that the situation was so serious.
22. A few nights later, the Treasurer of the Committee resigned.
23. So, a few days before Xmas, we are in this horrible situation with our new neighbour who gave us only ONE day’s written notice she intended to conduct works which would be of profound effect on us.
24. The owner Lot B then issued a Contravention Order and Notice to Contribute to new fence and cited the Dividing Fences Act.  ON CHRISTMAS DAY!  this show how little regard she has for us or for the relationship she is creating with her new neighbours.
25. We have tried to enjoy our holiday time with our children but all the while have the sickening feeling of this situation which was thrust upon us and the encroachment is not of our doing.  (Which everyone can plainly see – the structures were there long before we became owners)
26. The area itself is a significant size.  It enables us to walk around our home, hang our laundry, our children’s trampoline and my garden shed.  To lose it would have a profound impact as we would not be able to safely escape our back door if there were a fire.
27. The owner Lot B wants to affix a fence to our building and have it extend down through our yard and inhabit the concrete slab adjacent to our entire living area.  We would be able to hear her every movement.
28. Currently, the area provides significant buffer between houses – one of the most appealing features of this property and partly why we bought it – it is essentially a private residence in a complex but you would never know you have neighbours.
29. If this lady were able to live on the concrete slab, it would be like someone moving into your patio area where you spend all of your time.
30. One look at the changes she would impose would lead anyone to see how devastating it would be for us.
31. So again, we didn’t create the encroachment, her previous owner did.
32. We seek “approval in retrospect” for the long standing works conducted by BC and previous owners where no dissent or disapproval was made until new owner Lot B
33. Our BC manager didn’t bring this to our attention before owner Lot B’s contract closed.
34. HAD THE BC MANAGER TOLD US: we would have been able to approach the THEN Lot B owner and have the Exclusive Use boundaries redrawn to reflect current structures (we’re confident he would have consented since he’s the one who put them there) and submit a new CMS to Titles Registry.
35. We want to submit an Interim Order for Adjudication to BCCM.
36. Also, the BC Mngr has misinformed the Lot B owner that she “owns” the area – but it’s Common Property for Exclusive Use – she doesn’t seem to understand or care about this.
37. Can anyone give us advice on this?
38. Can we seek approval in retrospect – how about acquiescence, given BC implicitly approved the new boundary line by putting the retaining wall in upon which a subsequent owner built a fence thus changing the boundary of the two yards in question and willingly reducing his own yard at the time?
39. As you can see – it’s awfully complex and unusual given the encroachment was effetely done by the person upon who’s Lot the encroachment take place.  (If that makes sense).

Topic

[missfeather]

Thanks Lady Penelope for such a considered response.  Your reply covers everything I’ve been learning about.  It’s depressing.  It’s amazing how unmovable the terms of “exclusive use” are.  There’s just no budging.  

EDITOR’S NOTE:  Please don’t hit the “quote” button and just repeat an entire post for the sake of a one-line comment.  If you want to quote, edit it to the relevant line in the original.

Quote

[missfeather]

@Lady Penelope said:
missfeather – Have you asked your neighbour whether you may buy the portion of their exclusive use area? It may be worth considering, particularly if you make it an attractive sum of money

Yes, the first thing I did was offer her money for the area and ask if we could use some of the area (as it is of significant practical use to us in a multitude of ways).  She has absolutely no interest in money and zero intent to allow us any use whatsoever of the area, even as a safety route from our rear door if there were a fire.  She wasn’t even going to tell us about this issue or her plans for construction – she was just going to go ahead and begin works without ever approaching us. We found out by gossip just days before she intended to start works (only days before Xmas).  She has demonstrated she has absolutely zero regard for us.

Quote

[missfeather]

@JimmyT said:
I would say this situation would benefit greatly from a mediation with a view to reaching a compromise that allows her to reclaim her area of exclusive use without impacting unfairly on you.

Yes, we are prepared to negotiate.  She is not.  The fact that she had no intention of telling us about this and began conducting works without permission demonstrates her attitude towards us. 

She shows absolutely no regard for the devastating impact this will have on us for the rest of our time in this home – I am not exaggerating.  The changes will profoundly change our home.  We will lose any and all privacy and buffer as she will essentially be moving onto the patio our entire living area looks onto – it’s like someone moving into our lounge room. 

Not to mention the loss of all the practical function of the area – it is a large area and virtually an outside room to us serving various important daily functions.  We would be willing to compromise to be able to use a small portion of the area and to position any fences so that they provide somewhat of a buffer in order to maintain the quiet enjoyment of our home. 

She has flat out refused and wants to affix her fence to the corner of our entire living area so that she will occupy directly next to our home, again, as if someone is moving into our lounge/patio area – forever changing the nature of our home from one of privacy to a virtual share house. 

It is extremely depressing and unbelievable unjust.  Her attitude is incomprehensible as one could imagine that when you first meet your neighbours (literally the first time we talk to her) is her telling us she’s about to change our home and lives forever and we can just suck it up for all she cares.  That’s what we’re dealing with.  It’s sickening.

Quote

[Jimmy-T]

Yes it is sickening to find yourself living next door to a bully.  But, as has now been said many times, there is a fairly direct route to a solution here.

The next-door owner can’t build anything on common property without the approval of the Owners Corporation, and that requires a motion passed without dissent.

Obviously, you are going to dissent to any plans to build a new fence, so she is scuppered.

And as much as we are happy to let you vent your frustrations,  you need to move forward; there’s little point in just restating your albeit valid concerns over and over.

At the very least, you should ask your committee and/or your strata manager to send her a letter telling her that she can’t construct anything on common property without Body Corporate approval and anything that is constructed without approval may be removed at her personal expense. 

However, you are prepared to discuss a solution that is mutually acceptable.

If the committee and strata manager won’t so it, then get a strata lawyer to do it.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

Quote

[missfeather]

“If a motion was submitted and did not pass, you could potentially challenge that decision if you were able to assert that the opposition of your neighbour to the motion was unreasonable in the circumstances.”

To all:

I am trying to develop a series of grounds to assert that the opposition to the motion (that the CMS be amended to reflect current structures and redraw the Exclusive Use plan) be unreasonable in the circumstances.  (The CMS hasn’t been amended since 2000.  It is 2018 and a great many changes have taken place throughout the property, many fences, etc.)  

It’s hard as I’m sure anyone could argue that her opposition is perfectly reasonable because it’s her “exclusive use” area.  But surely there are grounds to be considered “in the circumstances”.  Otherwise, why have that clause at all?

“Reasonableness is decided objectively, based on the circumstances.” – According to a BCCM Adjudicator.

In these circumstances, there are a many reasons her reclaiming the area will have significant impact on us.  There are many reasons as to the manner in which the problem came to exist that have made it reasonable in the circumstances that we are occupying the area.  The fact that the BCorp Manager kept the issue from us until it was too late to do anything about it.  There are a dozen reasons.  Surely these amount to something “in the circumstances”?  

Does anyone have any strong examples of what has been considered “in the circumstances” that we could use in our argument?

We would also request for some restrictions to her intended works such as her affixing her fence to our building and occupying the area directly adjacent to our ENTIRE living area (where we spend all of our waking hours).  To limit that impact her modifications would have on our enjoyment of our Lot.  Surely there area restrictions as to what a Lot owner can do on Common Property anyway.  She seems to think she can start building the Taj Mahal if she wants, with complete impunity.

The basic rule governing an owner’s use of common property is contained in section 167 which prohibits an owner from using, or permitting another from using, their lot or the common property in such a way that it interferes unreasonably with another’s use or enjoyment of their lot or the common property.  There is a general requirement that an occupier must not use or permit the use of a lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other occupiers (Act, 167). For example, if an occupier of one lot was to sit on the common property immediately in front of another occupier’s doors or windows then that may amount to unreasonable interference with the second occupier’s enjoyment of their own lot and it would be no excuse for the first person to say they were acting within their rights by using common property for their own benefit.

Any more thoughts?

Thanks guys 🙂

Quote

[missfeather]

Further question, in your personal opinions, what do you think is the reasonable thing to determine here? 

I found the following definitions based on the Viridian case in the High Court.

• ‘Reasonableness’ means that an objective test must be applied to the subject matter in order to determine whether or not a Body Corporate has acted reasonably; and
• The requirement that a Body Corporate must always act reasonably in its decision making, applies also to the Body Corporate Committee and to the lot owners.

We are cautioned that all parties should always act reasonably, based on what might be considered by a reasonable person to be a reasonable decision.

 

Is it reasonable for the EUA plan to be amended to reflect the current structures? (given they’ve been in place for almost 10 years and we didn’t put them there and they’ve been entirely uncontested AND we could have had the lines redrawn IF the BC Mngr had told us there was a problem as soon as she found out?  And, we’ll be severely impacted by the proposed changes, etc etc)

OR

Is it reasonable that the current owner be restored the entire area for her EU only? (For the plain and basic objective reason that that is what it says on the EUA plan and that’s all there is to it?)

What would a reasonable solution be?

What would a reasonable person do?

(Surely she hasn’t acted reasonably by:

• declining to tell us about this when her solicitor instructed her to tell us before she purchased (surely that’s unreasonable?),
• beginning construction without permission a few days B4 Xmas,
• ignoring orders from BC,
• ordering us off “her land” with one day’s notice,
• not approaching us in a manner in which we could adjust to the change and perhaps have an amicable relationship with our neighbour,
• planning to construct structures adjacent to our living area thus permanently changing our enjoyment of our home,
• making an awful situation much worse by treating us with utter disrespect and disregard. 

Surely that’s not reasonable.)

In her mind she has a RIGHT to do this but that doesn’t make it the RIGHT thing to do.

Quote

[Lady Penelope]

I wish that I could advise Lot A that they a better chance of success than they hope for, but unfortunately I cannot do so.

Lot A must prove that the Body Corporate has been “unreasonable” in its decision making. To date the Body Corporate have made no “unreasonable” decisions regarding this matter. Whether the owner of Lot B is being “unreasonable” is not within the jurisdiction of the Act or the Tribunal to determine.

An exclusive use right is a valuable right and one that is extremely difficult to remove from an unwilling party. https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/exclusive-use-by-law

The exclusive use boundaries have not ever been changed therefore they do not need to be “restored”. Lot B is perfectly within their rights to have full use and enjoyment of all of their exclusive use area.

I am not of the same opinion as JT that a fence between two exclusive use areas in Qld would require a resolution without dissent. Perhaps JT is referring to NSW legislation which is possibly quite different.

Lot B was obviously aware of the boundary when they purchased their Lot. It is very unfortunate that Lot A purchased their Lot without being fully aware of the boundary of the allocated exclusive use area.

There are three ways in which such a fence can be approved in Qld: (1) via the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and the requirements that a sufficient dividing fence be erected on a boundary should one owner request it and with both owners sharing the cost (see https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/avoiding-fence-tree-and-building-disputes/your-responsibility-as-a-fence-owner ), and/or (2) the BCCMA and the Committee’s ability to assent (up to a limit of $3000) to improvements to common property by a Lot Owner, or (3) assent by ordinary resolution at a general meeting.

The owner of Lot B could probably chose either of the options listed above.

See here for an explanation of a Lot Owner’s Improvements to Common Property: https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance-and-improvements/improving-common-property-and-lots.

“Improvements by a lot owner

An owner can make an improvement to common property if approved by the committee, or the body corporate at a general meeting.

The committee can approve an improvement by an owner if the:

• total cost is less than $3,000
• improvement does not detract from the appearance of a lot
• body corporate is satisfied that the use and enjoyment of the improvement is not likely to be a breach of the owner’s duties as an occupier (e.g. by causing a nuisance to others in the scheme).

If the committee cannot approve the work it must be authorised by ordinary resolution at a general meeting.

The owner must:

• comply with any conditions of approval

and

• maintain the improvement.

When an improvement is made to the common property by a lot owner they must give the body corporate details of the type of work and value of the improvement.”

Quote

[Jimmy-T]

@Lady Penelope said:
I am not of the same opinion as JT that a fence between two exclusive use areas in Qld would require a resolution without dissent. Perhaps JT is referring to NSW legislation which is possibly quite different.

My mistake.

The legislation is different from NSW but I was (foolishly) going by a comment in item 12 by missfeather regarding changes to exclusive use by-laws.

A more reliable guide to this issue might be found  in the website to which you have already provided a link (above).

In any case, this is descending into a lot of “what-ifs” and arcane and exotic legal arguments proposed by the original poster who really needs to engage a strata lawyer as soon as possible (which is what we have all been saying from the start).

Until then, unless anyone has an example of a case like this and can say how it was resolved, I think we should just wait until professional legal advice has been sought.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

Quote

[scotlandx]

missfeather – please seek appropriate legal advice. You may not like the advice, but ultimately it will save you a great deal of time, money and effort. 

Quote

[missfeather]

Thank you to everyone who kindly took time and effort to respond to my posts.  I realise they were verbose and often pointless.  I was very upset.  I’m sorry if I caused any frustrations.  I’ve since come to terms with the fact a fence will need to go where the EUA boundary is (we have to pay more than half because we need a fire exit gate which she disagrees is necessary).  We did not have money to engage a Strata lawyer.  I sought free legal advise from a community centre.  I am curious to know how much the area is worth just for argument’s sake, if she were ever of a mind to sell it to us.  A property valuer costs nearly $1000, we don’t have this money.  Anyway, thank you.

Quote

[Author]

Replies