Common Property – Exclusive Use

@Kenny R said:
I am an EC member and we have a potential issue with continuing maintenance to an individual (town house) owner’s wooden patio deck and railings to which the owner alone has exclusive use. Re there any grounds for having this being made the owner’s responsibility? This is the only townhouse in a complex of 12 that has such an area.

Where are the unit boundaries? I am aware that NSW does not have the ACT’s class A/B unit distinction but if the townhouse has an area of land around it that is part of the unit area and the deck is within that area, doesn’t that make it the unit owner’s responsibility to maintain? It certainly would be here in the ACT. 

On the the other hand, if the deck extended out onto common property, then the unit owner should only have exclusive use of it through the granting of a special privilege* to use that area of common property and the conditions of use (such as maintenance) should be part of the motion that granted that permission. 

*In some circumstances in the ACT permission could be via an alternative mechanism of a ‘minor use’ if certain conditions are met, but the motion should still say something about maintenance.

If the deck is within the private yard it is part of the lot and it’s the owners responsibility to maintain it, just like the garden within the private yard is the owners responsibility or the kitchen or bathroom.

Is this an original structure shown on the plans of the complex if so it is structurally the responsibility of the Strata to maintain it, so long as the owner has carried out routine maintenance of the structure.

If it is not an original structure the Strata can refuse to repair it and just tell the owner that it’s not authorized and their is no bylaw so we reserve the right to remove it as a repair option.

Kenny R – you said in post 4 ….

“…. the courtyards, patios, terraces and decks, where no hardstand exists. are limited in depth to 1 metre below the upper surface of the floor of the respective lots and are limited in height to the underside of the horizontal eaves on the first floor of the respective lots except where covered.”

Not sure what all this means in relation to the decks in question…..

That quote (in italics) from the Strata Plan relates to the stratum of either the individual Lots or of the Common Property within the limits of which either the Owners or the Owners Corporation has responsibility, but we can’t state which it is, without advice from you about what precedes those introductory words; “…. the courtyards”.

Secondly, I’m confused about how many Lots have timber decks – your post #1 advised that only one of the 12 townhouses had a deck and yet your subsequent post #4 talks about Lots and decks; both plural (?).

If your original questions have been answered, then of course there’s no need to respond to this one.

Kenny – as I suspected, the intro. wording that you’ve now provided confirms that where decks are in place, everything from 1 metre below their surface to the underside of the first floor eaves of the respective Lots is common property, and the responsibility of the Owners Corporation (O/C).

There are only three (3) ways for your O/C to absolve itself of that responsibility.

The first is by way of Sect 62(3) of the NSW Strata Schemes Management Act (1996), the second is by way of Sect 65B where each Owner is granted exclusive use of the decks (under the rationale that nobody else could use them anyway), and with the Condition that each of those Owners is responsible for the maintenance and repair of those, and the third is by way of Sect 65(A) 1(b) where the O/C could simply remove its deck/s.

All of the above requires a Special Resolution to pass at a General Meeting, where ≥75% of those voting (personally and by proxy) would need to do so in favour, as determined from the units of entitlement (UOE) of each, and the total UOE of all those voting.

Regrettably, the first of the above is additionally conditional on the O/C’s decision not affecting “the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme”, the second requires written consent by each of the affected Owners followed by the Registration of an enabling Special By-Law, and the third would probably need to involve all decks and not just the one that’s at issue.

I doubt that any of the above would easily occur in the circumstances that you describe, so the best solution in my opinion would be for your O/C to allow an additional amount in its next budget to specifically cover the maintenance and repair of decks, so that at least every Owner is then aware of and transparently contributing to that, and for the O/C to then bide its time until an Owner seeks its consent to alter or change a deck, such as by roofing it or placing a new/different railing around it, at which time a Condition of any consent by the O/C could be that such Owner/s maintain and repair the entire structure.

Sorry – not the answer that you wanted I’m sure!