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In a dispute over a boundary that involves a common property boundary is it for the OC to know where the boundary is OR is it for the owner who is claiming the area is common property to prove to the OC it is common property?
Just keep in mind that if you reply I can’t go to NCAT and say “but so and so on Flatchat said”.
Personally I feel it is implied by a number of sections, especially ss 9 and 106, that the OC needs to know where the commons boundaries are so the OC can fulfil its responsibilities.
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Generally, it’s up to the person or body that’s disputing the status quo to prove that it is erroneous. Otherwise you’d have every man and his dog claiming bits of property that weren’t theirs. You would expect the OC check the facts when they were challenged before they started hiring lawyers to defend something that might be indefensible.
On the other hand, if they had information that contradicted accepted views, you’d expect them to pursue that issue and for the individual owner concerned to start looking for evidence to the contrary.
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.
I can just see an OC in the Supreme Court. The OC, “but your Honour no one has established it is common property and we have no idea where the common property is”.
And this would only happen if someone was disputing it. Simple logic. How much information do you require the members of your committee to have to hand at any given time? All they need to know is how to access it, if and when required.
I really can’t see the problem here, unless all records of the building have disappeared from every location where they might be held.
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.
Generally, the delineation between lot property and common property is 3mbodied in the strata plan, 2hich form part of the records.
Upon purchase each owner has a copy attached to the contract of sale.
If one is not at hand then jt can be obtained from LPS.
Sometimes the plan is badly drawn, and there is ambiguity of the dìvision.
This is an issue that NCAT can’t sort out as its the jurisdiction of the land and environment court.
If it is in fact that the plan is ambiguous, it may pay both parties to consult a lawyer to provide some guidance. This is a fairly specialised area so your local solicitor may not be the best.
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