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[Transferred from another discussion topic – JimmyT]
Here’s an issue that our Owners Corp has discussed but never resolved. That is:
“whether the parking space is common property (perhaps with exclusive use rights) or lot property”
I would be very interested in hearing from anyone with views as to what practical, legal, responsibility or obligations issues arise from the difference.
In our strata each unit has a small courtyard which our plan doesn’t distinguish as being either part of an owner’s lot or exclusive use common property. Each courtyard is directly outside each owners back door and is fenced off.
Every time we get into a discussion about whether it is ‘part of the owner’s lot or exclusive use common property’ we go around and around and seem to conclude that it makes no difference. But then a few years later someone else brings it up *smile* and so on we go …
Has anyone got any views, please?
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I don’t think whether your courtyard is common property or lot property is a matter for debate. Get hold of the Strata Plan (the diagram). Thick lines delineate lot property. Simple as that.
And if it’s common property, do you have any By-Laws which grant exclusive use?
Cosmo – frankly I’m surprised that the issue of the courtyards’ ownership and moreso the matter of who’s responsible for maintenance and repairs of/within it hasn’t arisen during the process of the sale of any of the lot/s involved.
Similarly with the issue of how owners’ exclusive use of those areas of common property is reflected in the lots’ value, and how that sits with the units of entitlement and therefore the levy contributions each pays.
One approach may to be let sleeping dogs lie and to merely wait until the exclusive use issue becomes one, and another to which I subscribe is to remedy the situation before an issue arises.
Under Sect 52 of the NSW Strata Schemes Management Act (SCMA) an Owners Corporation (O/C) can specially resolve to create and register a special by-law granting exclusive use of its common property (note Cl.2), Sect 53 enables the inclusion of conditions such as any payment to the O/C, Sect 54 covers who it is that must be made responsible for the maintenance / repair of the area, and Sect 55 covers the transfer of the exclusive use to subsequent Owners.
As you don’t envisage any difficulties with the Owners involved, it shouldn’t be too difficult to achieve the ≥75% vote in favour (by unit entitlement) to pass the special resolution at a General Meeting, but the process of converting the exclusive use areas to lot property is a little more difficult and expensive.
The latter involves a strata sub-division of your Plan, that is amongst other things preceded by a site survey, a valuation of the lots concerned, and the submission of the new Strata Plan and a revised Schedule of Unit Entitlements to NSW Land & Property Information (the former Land Titles Office).
After sounding-out the Owners, perhaps have your O/C consult with a Strata Lawyer about the detailed mechanics including the pros and cons of each approach, but if it was up to me I’d definitely formalise Owners’ use the Common Property whilst everyone’s in the mind-set to do so.
Cosmo – it’s entirely up to your O/C, but remember that just because there’s never been a problem doesn’t mean there never will be, that you will only need one Special By-Law covering all affected lots, and that Strata funds and Owners’ funds are one and the same!
One final point though…. you’ve apparently looked at the Strata Title Plan, so check it again and look for any notations describing or qualifying what “exclusive use common property” is – I seem to remember something in the original Strata Schemes (Freehold) Development Act (?). Perhaps contact NSW Land & Property Information; they’re very helpful with interpreting Strata Title Plans and have a specialist Strata Team who’s rep. will call you back after contact.
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