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According to the strata plan and the terrace of my garden apartment is 100% on my title. However, a raised and fenced platform on the terrace houses the hot water system (HWS) and meters for the whole block of 10 apartments. This takes up 3.2 sq m of my terrace. The HWS was there when i purchased but I did not realise this until afterwards. The fences need replacing and the EC has determined that the cost should be split 50/50 between the OC and me. Clearly this is unacceptable as the HWS is illegally on my lot. I want to resolve this situation by either removing the HWS from my lot (likely to be too expensive to be reasonable) or re-drawing the boundaries with reasonable comensation to me as I paid for this area when I purchased the apartment. Verbal advice from the Offfice of Fair Trading is that the HWS must be placed on common property. I now intend to write to the OC seeking resolution of this issue but I am not sure what to put in the letter so that they take it seriously and take action within a reasonable timeframe. Any suggestions about this or my rights and responsibilities in this situation?
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Hi KerryR
Prior to going any further, you should be 100% certain that there is no easment or other right of access for the HW service, as it seems odd that it would be located on a private entitlement.
There may be special by-laws or a provision on title that maintained the HW service as common property. Is the only means of accessing the HW service via your Lot or can it also be accessed from another entry point not on your property?
That said, I believe (and I could be wrong) that your outdoor entitlement only extends 3m above the ground – above that it is common property: you did mention that it is a raised platform, but a 3m+ platform seems quite impractical for a HW service.
Perhaps politely asking the OC to explain why the HW service sits within private property would be a good starting point. It may be that your title entitlements were changed at some point and this information will assist you to take the next steps
While you are at it, perhaps it is time to suggest that the hot water service goes on the roof and should be solar.
KerryR – I can't think of an easy way to resolve your problem, but on the basis of the reasonable attitude that you've obviously adopted I'm sure you'll find a way forward.
So in recognition of the fact that you were aware of the positioning of the hotwater system at the time of your purchase, here are a couple of suggestions; neither easy, but I'd suggest that you do the initial leg-work and take the results and your then preferred option to your Owners Corporation (O/C):
- Contact NSW Land & Property Information (incorporating the old Land Titles Office) and discuss with them the options for a Strata Sub-Division. That procedure would remove the 3.2m2 from your Lot and place it on the Common Property (CP) and adjust your Unit Entitlement accordingly, and whilst it involves the same process as Strata Titling a whole building, the costs of doing so are proportionate to the area of land involved; in your case a mere 3.2m2.
- Arrange for a Plumber (preferably one used by your O/C) to provide some advice regarding whereabouts on the CP the hotwater system could be practicably be relocated, the indicative costs of doing that, and the disadvantages to the O/C of leaving the system where it is (e.g. emergency access). This may cost you a service call, but it's worth the expense.
By doing the leg-work yourself you will not only be better informed, and better able to decide upon your preferred solution, but you'll demonstrate to your O/C a determination to see the problem resolved.
the hot water service or a large part of it is probably what is called structural cubic space. This is basically a shared service line such a pipe which services more than one lot. All structural cubic space is common property even if positioned in lot space and not shown on the strata plan. So the OC may well have a right to acces and keep the HWS in your terrace without an easement omr bylaw. Ace.
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