Flat Chat Strata Forum Common Property Current Page

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  • #8616

    I live in a complex of 16 in Hornsby area and at the front of the building there is a large common area of grass and garden. Whilst this area is clearly defined as common property one unit (lot 1) has much better access to it, their balcony door opens on to it. Other lot owners/tenants have to open a gate and go down 8 steps to gain access to the area.

    In the 8 years I have been there as far as I could see no one other than lot 1 has used the area and the old owner had “decorated” the area with a number of pot plants and other garden ornaments. Recently the unit was sold to a new young guy who has made a number of changes to the area – tidying up, new pot plants and the like. I would stress that all that everything he has done so far looks good and is an improvement on what it looked like, but I have two concerns;

    1. By allowing an owner to take control of a common area is there any chance he could obtain exclusive use of thearea in the future without OC approval?
    2. Should the EC insist that before making any changes to the common area the owner should seek approval from the OC or EC. As I said above so far everything he has done looks good but what if he does something from left field which looks terrible, have we compromised ourselves?
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  • #17472
    kiwipaul
    Flatchatter

      To be given exclusive use of common property a bylaw has to be passed with 75% of votes cast in favor of the motion and then this bylaw has to be registered with the state gov.

      It might be an idea to have a word with the guy to advise him that he is altering common property and so far what he has done maintains the look of the property but if he does something out of keeping the EC is able to restore it to it’s original condition and bill him the cost and so it might be an idea to run any changes past the EC before doing them.

      Because he is maintaining it he is saying the EC money and so you have to be careful otherwise he might stop doing it and leave it to the EC to maintain.

      #17479
      Jimmy-T
      Keymaster

        @kiwipaul said:
        Because he is maintaining it he is saying the EC money and so you have to be careful otherwise he might stop doing it and leave it to the EC to maintain.

        That would be my primary consideration.  I would be tempted to simply send a letter that politely established that the area is common property, congratulated him on the work that he’s done and asked him to let the EC know if he plans any further landscaping and what form that might take.

        The main reason for doing this would be to establish ownership without getting into an unnecessary fight.  This owner is enhancing the look of the entire building which boosts the values of everyone’s properties. But it’s worth establishing ownership to avoid any future annexing of the common property by him or subsequent owners.

        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.
        #17486
        Sir Humphrey
        Strataguru

          I think the EC could minute that an action for one of its members is to have a quiet word with the new member making the followng points:

          -The EC appreciates the maintenance and improvements the unit owner is making to the area, does not have a problem with that, and is very appreciative of the efforts made.

          -Nonetheless, explain to the owner that the EC (acting for the OC as a whole) has responsibility for maintenance of the common property. Consequently the EC is obliged to ensure that anything the owner does is safe and generally attractive and in keeping with the style of the place. So, please discuss any ideas you might have for the area. 

          -A fundamental principle in strata title is that all owners have a right to access and use common property. We recognise that in practice this particular bit only seems to be used by the owner of this one unit. Nonetheless, any improvements made should not restrict access to other owners or give the impression that it attaches exclusively to this unit. 

          As others have said, make it clear that this is common property while allowing the present arrangements to continue. Perhaps the owner does not realise this is not his bit. If that is the case, better to have been clear about it now. 

          We have similar arrangements in our set of townhouses:

          -There are many little bits of common property that are really one used by one or perhaps two units and is generally maintained by those units. As a matter of long-standing policy, the style of our development is that unit owners area encouraged to blur the boundaries of their unit areas with the common property in preference to fences (although they are permitted). This creates a more open, parklike environment. 

          -One owner plants and waters in a larger area visible from that unit. She is pissed off with the EC for various reasons and does not communicate except when she thinks we have done something wrong, and then prefers to act via third parties. However, what she does on this bit of the common property is in keeping, harmless and generally useful. She never asks for reimbursement for the more expensive, more advance plants she buys. We seem to have an understanding that we leave this alone. 

          -In another area it is particularly understandable that particular strips were assumed by owners to be part of their unit areas although the unit plan shows they clearly are not. Two such owners put up fences to enclose the strips by their units. One fence was amicably removed when the unit sold and the new owner was made aware that the fence was unapproved. Another unit’s fence was not removed till we had explained it nicely, then again as a formal breach notice, then went to the ACT tribunal and still it was only removed after the unit owners were reminded in writing that failing to act on the orders of the tribunal was an offence. 

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