Lady P
I accept your point about obstruction. I just gathered that up as it was between the by-laws on parking and lawns.
I was more focussed on By-law 4(b) of the revised standard by-laws, compulsory for pre-1996 schemes which says: “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.”
Isn’t that precisely what’s going on here? I suppose it depends on your definition of “garden”. Is it somewhere that you plant vegetables or flowers – or is it an enclosed or defined area where you lie on the grass and sunbathe?
Regarding the planters, I took them (possibly wrongly) to be large and hard to move – the common concrete or deep plastic type. Perhaps Peter can enlighten us. But judging by previous instances of this kind of thing that I have come across, the lot owner could be using them to define the area of his land grab.
Your earlier comments about access to the common property lawn outside his French windows being compensation for not having the views of higher apartments is sympathetic but I’m sure it wasn’t intended. If the lawn area was supposed to be annexed in this way, he should be paying higher levies.
Perhaps he is but in this kind of situation, normally the lower flats in a building attract lower levies because they don’t have the view (or use the lifts, for that matter). Common property is there for everyone, to look at, if not to walk across or roll around on.
It’s certainly not free land that can be annexed for the exclusive use of one owner – enhancing their property value – unless, as you rightly point out, they get a special resolution passed and compensate the other owners in the building.
By the way, a friend has just been given exclusive use of a small area near her apartment on a 25-year lease. It’s a neat way of allowing for a logical expansion of her territory into part of common property that no one else can get to anyway, while compensating the Owners Corp without needing to redraft the unit entitlements.