Flat Chat Strata Forum Common Property Current Page

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  • #7226
    Anonymous

      I am an owner of a unit in a small 6 unit apartment block which is self managed. All of the units have their own balconies, except for the ground floor unit. Instead there is a patio area outside it with access from double opening doors. Whilst this patio is directly outside the unit and then flows onto the lawn and garden, the patio area itself is not on the title of the unit and is therefore common area. The Owners Corporation is currently considering granting an exclusive use bylaw  to the owner of the unit as we currently have the Standard Bylaws. My first question is: What are the correct procedures for this to be implemented and what are the pitfalls for the Owners Corporation?

      In looking at this matter I have become aware that there does not seem to be any specific bylaw in place  to prevent any occupant of the unit in question from assuming use of this common area by leaving all manner of possessions on the patio. How could we control this  common area patio as a vacant space if the Owners Corp so chose and if the exclusive use does not proceed? Confused

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    • #12426
      Jimmy-T
      Keymaster

        Your exclusive use by-law would include any restrictions that you and the unit owner agreed were reasonable – such as whether or not a barbecue was allowed, or restrictions on plant pots (or an obligation to maintain plants) etc etc.  This would be there for future owners who might not respect the rest of the building's wishes as much as the current owner does.

        If there is no agreement to establish an exclusive use by-law, then the area is subject to the same by-laws as any other area of common property but that doesn't mean necessarily that you can all take your deckchairs down there and start sunbaking.

        In fact, you may find that your balconies are also common property for the sake of by-laws but obviously only accessible to the residents of the attached unit.

        Sooner or later you are going to have to talk to a specialist strata lawyer who will tell you if an exclusive use by-law is even required and then help you draft one if it is.

        There is also a complicating factor in a principle of law I've heard about recently where established and unchallenged use of an area like that is accepted as “ownership”.  The details I have are hazy but if one of our lawyer readers could help, I'd love to know about it.

        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.
        #12460
        Whale
        Flatchatter

          RG said:

          I am an owner of a unit in a small 6 unit apartment block which is self managed. All of the units have their own balconies, except for the ground floor unit. Instead there is a patio area outside it with access from double opening doors. Whilst this patio is directly outside the unit and then flows onto the lawn and garden, the patio area itself is not on the title of the unit and is therefore common area. The Owners Corporation is currently considering granting an exclusive use bylaw  to the owner of the unit as we currently have the Standard Bylaws. My first question is: What are the correct procedures for this to be implemented and what are the pitfalls for the Owners Corporation?

          In looking at this matter I have become aware that there does not seem to be any specific bylaw in place  to prevent any occupant of the unit in question from assuming use of this common area by leaving all manner of possessions on the patio. How could we control this  common area patio as a vacant space if the Owners Corp so chose and if the exclusive use does not proceed? Confused


          The drafting of an Exclusive Use By-Law is not rocket science !!

          As has been suggested, it's more about the O/C and its Proprietor agreeing in plain english about what is reasonable with regard to the use of the area and about how it is to be used and maintained (like what may be placed within the area, who cleans it, and who pays for that), and then writing all that down on the required lodgement form.

          In NSW that's Form 15CB available from the NSW Land & Property Management Authority – don't know about other States / Teriritories.

          That agreement between the Parties is essential, particularly as the Proprietor who benefits from the exclusive use right has to agree in writing to the making of the By-Law, and it's common to include a provision that the By-Law cannot be revoked or repealed by the O/C without the written consent of that Proprietor (or their successor/s).
          By the way, this would be a Special By-Law which requires the agreement of 75% of those Propretors in attendance at the General Meeting; incl. Proxies.

          You will also need to register another Special By-Law stating who it's agreed will be responsible for that maintenance referred to in the preceeding paragraph (2), and what that comprises. It's easiest to have your grounds maintenance contractor do what ever maintenance is being done now within that area, and have your proprietor with the exclusive use right reimburse the O/C for that on a quarterly basis via another line item on their Levy Notice / Invoice.

          If you and your O/C are prepared to put in the work, the cost to Legally Register each Special By-Law and to place each on your Plan's Title in NSW is $97.00.

          Hope this helps you decide on a way forward, but as I said, don't let it phase you, just keep the words short, in plain english, and unambiguous.

           

          Cheers – “The Whale”

           

          #12469

          There are many ways to formalise the use of part of the common property and all require the consent of the owners corporation. The most common methods to formalise use include – 

          • Obtaining permission or a licence from the owners corporation to use that part of common property
          • Arranging for a lease of that part of common property
          • Arranging for an exclusive use by-law assigning rights with respect to that part of the common property
          • Acquiring freehold rights to that part of common property via strata plan of subdivision.

          When should an “exclusive use by-law” be used to formalise the use of part of the common property?

          An owners corporation can confer to an owner of a lot  –

          1)   a right to exclusively use and enjoy a specific area of common property which other owners are to be prohibited from using, or

          2)   a special privilege to undertake an activity or make an installation in respect of a special area of common property, or

          3)   a combination of both.

          However, a special privilege conferred would not normally permit that owner to construct any building on part of that common property land.

          An exclusive use or special privileges by-law may be conferred only on the owner of the lot and operated for the benefit of and is binding upon the owner for the time specified in the by-law. 

          All concerned owners must consent in writing to the passing of an exclusive use by-law in relation to common property before the by-law motion is considered at the general meeting.

          A special resolution needs to be passed at a general meeting of the owners corporation to pass the by-law. 

          For an information sheet on this topic, please email: simone@teyslawyers.com.au

          Kind regards,

          Simone Balsara

          Lawyer

          ———————————-

          TEYS Lawyers

          The Strata Law Experts

          02 9562 6500

          https://www.teyslawyers.com.au

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