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29/06/2018 at 3:46 pm #11742
Hi there,
Great site. Thanks. If we have “exclusive use” of the flat rooftop of our apartment building (which was once the old laundries), and are turning the old laundries into an office, with kitchen and bathroom, should we compensate the other five unit owners for the value we’re adding to our property? Is there a rule about this? And how much? Thanks again!
Webmaster’s Note: One week and many responses after posting this, Libbylou admitted that she is not the owner of the apartment referred to here, but is another owner in the building. We only discovered this after much discussion on this topic. The following posts are interesting and informative but you should perhaps read them with the benefit of that knowledge. – JimmyT
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29/06/2018 at 6:14 pm #29841
Woah there cowgirl. If all you have is ‘exclusive use’ it means the others can’t access it but it’s still owned by all of you. You can’t go putting permanent structures on it without approval (good luck with that!) as it is not your right to do that.
29/06/2018 at 6:52 pm #29843Flame Tree is right, you may have exclusive use but the property, including the laundries, doesn’t belong to you. If you want to do anything, you will need to get OC approval.
30/06/2018 at 6:25 pm #29855Thanks Flame Tree and Scotlandx for your advice. Cos you know strata stuff, I wonder if you could answer the following?
Can an “exclusive use” bylaw be overthrown by other owners?
The previous lot owner, who had “exclusive use”, damaged the roof by hammering floorboards into the waterproof membrane, but every lot owner had to pay to get it fixed (and still do if there’s damage caused by us). Does this weaken our hold on the “exclusive use” area?
If this background helps, apparently many years ago the lot owner paid $20K to the other owners for “exclusive use” to the roof (almost the footprint of the building).
Thanks again for your help.
(PS, I’m not really a cowgirl – more a guerrilla gardener.)
01/07/2018 at 8:25 am #29856An owners corporation can only repeal an exclusive use by-law that confers on the owner of a lot, or the owners of several lots, certain rights or privileges to use a part of the common property, if it has the written consent of the owner(s) of the lot(s) concerned.
The Strata Schemes Adjudicator has the power, under the SSMA, to repeal an exclusive use by-law if the lot owners concerned unreasonably refuse to consent to the repeal of the exclusive use by-law. However, the Adjudicators rarely extinguish the proprietary right of the owner(s) of the lot(s) once a special rights by-law has been granted, particularly if the lot owner has paid for this area.
01/07/2018 at 8:59 am #29857Thank you Lady Penelope for your response. It is fantastic that everyone is so willing to share their knowledge, so thank you again!
I’ve done a little research and have discovered that an “exclusive use” bylaw may be considered invalid if responsibility for maintenance hadn’t been assigned to the Unit concerned or all of strata in the bylaw, and if the voting to grant exclusive use to the Unit was incorrect. There may also be a “sunset” clause, so exclusive use is finite.
It’s time to revisit the “exclusive use” bylaw, to examine the wording, and the way in which the vote was cast.
BTW, do you know if these sorts of bylaws are publicly available for viewing? If so where please? And I guess the strata records indicate how the voting was carried out?
And if the bylaw is indeed invalid, how can we correct that please?
Thanks again – and enjoy the rest of your weekend.
01/07/2018 at 11:25 am #29858You should be able to find out this information from the strata records. Your Strata Manager should have all of these records.
As an owner you are able to access these records for a small fee. Contact your Strata Manager and advise them that you wish to search the records and organise a date and time to do this.
To save yourself a lot of time try and narrow your search down to a specific period in time so that the Strata Manager will have the material ready for you.
If, after searching the records, you believe that an error has occurred in the making of the original decision to grant exclusive use of this area then either you, or the owners corporation may want to take this matter to mediation and then possibly on to adjudication.
You would no doubt be aware that the owner with the exclusive use grant will fight hard to retain it and will not give it up easily. Put yourself in their ‘shoes’ and you will understand that they have a lot to lose.
This is a complicated case so you may need legal advice.
Incidentally, I can’t understand why the owner’s corporation paid for the repair of the membrane when it was the lot owner who caused the damage??? An owner cannot damage common property and usually cannot drive a nail or a screw into common property. The lot owner should have been made to pay to repair the damage to the membrane.
01/07/2018 at 11:34 am #29859As you are an owner you can just ask the Strata Manager for a copy of the exclusive use by-law.
Re this:
The previous lot owner, who had “exclusive use”, damaged the roof by hammering floorboards into the waterproof membrane, but every lot owner had to pay to get it fixed (and still do if there’s damage caused by us). Does this weaken our hold on the “exclusive use” area?
That is odd – that has nothing to do with exclusive use. If an owner does something that damages common property, or adds something to the common property without permission, then as a starting point they are responsible for that damage or addition. This is taking into account we don’t know what the by-law says, but I doubt that the by-law says that the previous owner could install something like floorboards on top of the roof. Similarly if you now caused damage you are responsible, not the other owners.
In terms of “fixing” the by-law, you could put a motion to a general meeting to revoke it, but I assume you want to continue to have exclusive use. I suggest that you first get a copy of the by-law and see what it says.
01/07/2018 at 12:02 pm #29860thank you again lady Penelope and scotlandx for your responses. you are very helpful. I will speak to the strata manager tomorrow to access the records. I think it will be difficult to narrow the search as the building is 100 years old. although it was originally company title so possibly this exclusive use was granted soon after it became strata. ill check it out. thanks again.
ps I know, odd that all other unit owners consented to pay for the damage to the membrane. from what I understand, at the time the chairman of the OC was a strata lawyer so you’d think she’d know better? a mystery. please feel free to comment – I’m bamboozled
01/07/2018 at 12:14 pm #29861@Libbylou said:
I know, odd that all other unit owners consented to pay for the damage to the membrane. from what I understand, at the time the chairman of the OC was a strata lawyer so you’d think she’d know better? a mystery. please feel free to comment – I’m bamboozledIt does seem odd but I’m guessing that the former chair was only too aware that the Owners Corp’s primary responsibility was to repair the damaged membrane first – regardless of who was liable – then pursue the culprit for the costs afterwards. It may then have been decided that it was either too hard or not cost effective enough to chase the owner for the costs. Or maybe they just lost interest. Either way, they probably did the right thing to begin with, then didn’t follow through.
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.
01/07/2018 at 12:21 pm #29862@Libbylou said:
The previous lot owner, who had “exclusive use”, damaged the roof by hammering floorboards into the waterproof membrane, but every lot owner had to pay to get it fixed (and still do if there’s damage caused by us).Where does it say that the membrane has to be repaired at the Owners Corps expense? If it’s in the exclusive use by-law, than fair enough. But while the Common Property is the responsibility of the Owners Corp, damage done to it is the responsibility of the person who does the damage.
You really need to follow Lady P’s advice and go and look at your by-laws (which your secretary should have anyway, if only because every new tenant is required by law to be given a set).
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.
01/07/2018 at 12:49 pm #29864thanks JimmyT,
that sounds plausible – the chair did the right thing to begin with (fixing the roof), then didn’t follow through for those reasons.
I’ll contact the strata manager tomorrow to ask for a copy of the exclusive use bylaw. While it’s an exclusive use area, are other owners allowed to come up and check out the roof for any reason?
and has it limited their use and enjoyment while having it as “exclusive use”? they have to have washing machines and dryers in their apartments now, rather than wash and dry in the sunshine on the roof; they can’t use the roof as a safe and secure place for children to play; and they can’t access the roof as an escape route in an emergency (up one stairs and down another). Are these reasons why they could have the “exclusive use” bylaw overturned? we’re also converting the old laundries on the roof (with permission) into a second kitchen, bathroom and office, so adding value and enjoyment for ourselves. can you comment on any of this please?
thanks again
01/07/2018 at 12:51 pm #29865HI Lady Penelope,
No, the chair was not the Unit holder with the exclusive use to the roof, but from my understanding did want to sell her apartment so most likely wanted to get things fixed ASAP.
Cheers
01/07/2018 at 1:22 pm #29866@Libbylou said:
I’ll contact the strata manager tomorrow to ask for a copy of the exclusive use bylaw.It should be included in your regular by-laws as a permanent record. Don’t you have a copy?
While it’s an exclusive use area, are other owners allowed to come up and check out the roof for any reason?
No. On the same principle that they can’t come and look at your balcony (which is common property)
… has it limited their use and enjoyment while having it as “exclusive use”? they have to have washing machines and dryers in their apartments now, rather than wash and dry in the sunshine on the roof; they can’t use the roof as a safe and secure place for children to play; and they can’t access the roof as an escape route in an emergency (up one stairs and down another). Are these reasons why they could have the “exclusive use” bylaw overturned?
Not really. The loss of amenity was part of the trade-off for which they accepted the payment of $20K.
we’re also converting the old laundries on the roof (with permission) into a second kitchen, bathroom and office, so adding value and enjoyment for ourselves. can you comment on any of this please?
If you get permission, there should be no problem.
However, if the OC feels that this was never envisaged in the original exclusive use by-law, and that you have somehow gained an advantage that they never thought you would have, there is a relatively simple formula, established by the High Court, for compensation, which I will codify as c = n – (e + x).
In this formula:
c = compensation to the Owners Corp
n = the estimated value of your apartment after the new work has been done
e = the estimated existing value of your apartment
x = the costs associated with the improvements, including actual work and materials, architect and design fees and legals.It’s not hard to see how in your circumstances, ‘c’ could end up close to zero but it may be worth looking at this if there is resistance to allowing the work done.
One other thing about a properly constituted special resolution or common property by-law: apart from via orders from NCAT, it can only be rescinded with the written permission of the lot owner.
And thanks for changing your screen name!
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.
01/07/2018 at 2:21 pm #29868I wonder if the exclusive use by-law was registered…if it wasn’t then that is a whole other issue, as it would have no force.
01/07/2018 at 4:01 pm #29871thanks JimmyT, thanks scotlandx.
Where would the exclusive bylaw be registered please? and I’ll check.
My last query I hope: although we’ve got permission to convert the old laundries into an office space and bathroom and kitchen, do you think it would be a problem with the OC if we had friends and family stay over in the space during holidays, etc?
thank you again, very much, for all the help
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