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RG said:
I am an owner of a unit in a small 6 unit apartment block which is self managed. All of the units have their own balconies, except for the ground floor unit. Instead there is a patio area outside it with access from double opening doors. Whilst this patio is directly outside the unit and then flows onto the lawn and garden, the patio area itself is not on the title of the unit and is therefore common area. The Owners Corporation is currently considering granting an exclusive use bylaw to the owner of the unit as we currently have the Standard Bylaws. My first question is: What are the correct procedures for this to be implemented and what are the pitfalls for the Owners Corporation?
In looking at this matter I have become aware that there does not seem to be any specific bylaw in place to prevent any occupant of the unit in question from assuming use of this common area by leaving all manner of possessions on the patio. How could we control this common area patio as a vacant space if the Owners Corp so chose and if the exclusive use does not proceed?
The drafting of an Exclusive Use By-Law is not rocket science !!
As has been suggested, it's more about the O/C and its Proprietor agreeing in plain english about what is reasonable with regard to the use of the area and about how it is to be used and maintained (like what may be placed within the area, who cleans it, and who pays for that), and then writing all that down on the required lodgement form.
In NSW that's Form 15CB available from the NSW Land & Property Management Authority – don't know about other States / Teriritories.
That agreement between the Parties is essential, particularly as the Proprietor who benefits from the exclusive use right has to agree in writing to the making of the By-Law, and it's common to include a provision that the By-Law cannot be revoked or repealed by the O/C without the written consent of that Proprietor (or their successor/s).
By the way, this would be a Special By-Law which requires the agreement of 75% of those Propretors in attendance at the General Meeting; incl. Proxies.
You will also need to register another Special By-Law stating who it's agreed will be responsible for that maintenance referred to in the preceeding paragraph (2), and what that comprises. It's easiest to have your grounds maintenance contractor do what ever maintenance is being done now within that area, and have your proprietor with the exclusive use right reimburse the O/C for that on a quarterly basis via another line item on their Levy Notice / Invoice.
If you and your O/C are prepared to put in the work, the cost to Legally Register each Special By-Law and to place each on your Plan's Title in NSW is $97.00.
Hope this helps you decide on a way forward, but as I said, don't let it phase you, just keep the words short, in plain english, and unambiguous.
Cheers – “The Whale”