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HELP! Seeking approval in retrospect for Exclusive Use encroachment (and more)
Hello everyone
This is my first post. We have a serious problem and we’d really appreciate any advice. It’s a complicated series of events so I’ll break it down as clearly as possible.
Our new neighbour (Lot B) is claiming we are encroaching on her exclusive use area according to the Exclusive Use Plan in the Community Management Statement (CMS).
It is mutually understood that it was the previous owner of her Lot B that placed a fence in such a way as to create an boundary onto his (now her) own exclusive use area that doesn’t reflect where the boundary should be according to the CMS.
1. In April 2017, we purchased a “free standing” townhouse in complex of 18, (Lot A).
2. The THEN owner next door (Lot B) had built a fence to keep his dog in. He built the fence along an existing retaining wall but this wall and fence did not follow the Exclusive Use boundary line on the CMS.
3. The fence is built so that it encroached on HIS (previous owner Lot B) exclusive use area (effectively, he willingly built a fence which reduced his yard size).
4. The previous owners of our Lot (A) subsequently laid a concrete slab onto their side of the area.
5. First: The retaining wall was put in by Body Corporate.
6. Second :The fence was put in by the previous Lot (B) owner (without approval)
7. Third: The slab was put in by our previous owner (Lot A) (without approval)
8. These modifications were done over the last 10 years, Lot B’s fence was build some 7 years ago.
9. At NO point has there been any dispute between the THEN owners of Lots A and B or from the Body Corporate in all this time until the CURRENT/NEW owner of Lot B has brought it to everyone’s attention.
10. Essentially, both previous owners of Lots A and B were totally happy with the structures given they’re the ones who installed them.
Again, the owner who put the fence in, which reduces the exclusive use area of Lot B, was the owner of Lot B at the time. So, Lot A benefits by having an extra area which was made available to them (informally) by the owner of Lot B (who’s area is being encroached upon).
- Essentially, Lot B’s previous owner built a structure that encroaches upon his own area
- So, to further complicate things:
- On Dec 10, we, owners of Lot A, were made aware of the problem via gossip from a neighbour who mentioned there was “an issue” with the fence line between Lots A and B – THIS IS THE FIRST WE HEARD ABOUT IT.
- The new owner of Lot B (who’s contract closed on 29 Nov), did not tell us about this situation and has since admitted her solicitor prepared a letter for her to give us before she became an owner but she decided not to give it to us.
- We have also learned that the new owner spoke to our BC Manager about this situation back in early October.
- The BC Manager neglected to bring the situation to our attention when she first new back in early October. She had 7 weeks in which she could have told us – 5 of which would have enabled us to change the exclusive use boundary in the CMS before the Lot B was sold.
- If we had known about this situation before Lot B was sold, we would have approached the THEN owner Lot B to redraw the Exclusive Use boundary – this whole situation would have been avoided. We suspect the new owner deliberately didn’t bring this to our attention before she became an owner because she knew we could have made this change – this is why we found out via gossip!
- The BC Manager conducted investigations into the situation in December but again, neglected to tell us (the owners!!!) about the situation.
- It seems everyone knew about this but nobody was going to tell us, including the new owner! As I said, we found out by gossip on Dec 10!
- On December 15 (one day after a verbal discussion from the new owner of Lot B that she intended to remove the fence between our properties and wanted us to vacate the area), we approached the Strata Management to discuss the matter.
- It became evident that due process had not been followed – for example, the new owner had no written consent to conduct works.
- The Strata Management sent and email to the Committee and the new owner of Lot B instructing to cease all works pending further investigation when their office reopened after Xmas and New Years – 4 Jan 2018.
- On Monday 18 Dec, the new owner left a nasty letter on our doorstep advising she would commence removing fence next day (Tuesday)
- We tried to communicate with Committee but nobody would speak to us.
- The Secretary of the Committee resigned
- We attempted self-resolution with owner Lot B via calm and reasonable letter requested she cease works pending further investigation and citing by-law 40 (d) where an owner cannot conduct any works (whatsoever) without written consent from Committee (which she does not have)
- Tuesday morning owner Lot B bashing on our door (we didn’t answer as she’s quite aggressive and other owners are not keen on her either) then we hear her tearing down the fence with a crow bar.
- We calmly reminded her she is not permitted to do so but she insisted otherwise.
- We felt threatened and intimidated and so called police – especially as we were receiving no help from BCCommittee and she was ignoring their instructions to cease works anyway
- Police asked her to cease and desist – she finally did but it took half an hour to calm her down – all the while she had continued to rip down fence palings which police were speaking with her.
- During altercation, Owner Lot B knocked on doors of Committee members and brought them down to the yard. The were quite shocked that the situation was so serious.
- A few nights later, the Treasurer of the Committee resigned.
- So, a few days before Xmas, we are in this horrible situation with our new neighbour who gave us only ONE day’s written notice she intended to conduct works which would be of profound effect on us.
- The owner Lot B then issued a Contravention Order and Notice to Contribute to new fence and cited the Dividing Fences Act. ON CHRISTMAS DAY! this show how little regard she has for us or for the relationship she is creating with her new neighbours.
- We have tried to enjoy our holiday time with our children but all the while have the sickening feeling of this situation which was thrust upon us and the encroachment is not of our doing. (Which everyone can plainly see – the structures were there long before we became owners)
- The area itself is a significant size. It enables us to walk around our home, hang our laundry, our children’s trampoline and my garden shed. To lose it would have a profound impact as we would not be able to safely escape our back door if there were a fire.
- The owner Lot B wants to affix a fence to our building and have it extend down through our yard and inhabit the concrete slab adjacent to our entire living area. We would be able to hear her every movement.
- Currently, the area provides significant buffer between houses – one of the most appealing features of this property and partly why we bought it – it is essentially a private residence in a complex but you would never know you have neighbours.
- If this lady were able to live on the concrete slab, it would be like someone moving into your patio area where you spend all of your time.
- One look at the changes she would impose would lead anyone to see how devastating it would be for us.
- So again, we didn’t create the encroachment, her previous owner did.
- We seek “approval in retrospect” for the long standing works conducted by BC and previous owners where no dissent or disapproval was made until new owner Lot B
- Our BC manager didn’t bring this to our attention before owner Lot B’s contract closed.
- HAD THE BC MANAGER TOLD US: we would have been able to approach the THEN Lot B owner and have the Exclusive Use boundaries redrawn to reflect current structures (we’re confident he would have consented since he’s the one who put them there) and submit a new CMS to Titles Registry.
- We want to submit an Interim Order for Adjudication to BCCM.
- Also, the BC Mngr has misinformed the Lot B owner that she “owns” the area – but it’s Common Property for Exclusive Use – she doesn’t seem to understand or care about this.
- Can anyone give us advice on this?
- Can we seek approval in retrospect – how about acquiescence, given BC implicitly approved the new boundary line by putting the retaining wall in upon which a subsequent owner built a fence thus changing the boundary of the two yards in question and willingly reducing his own yard at the time?
- As you can see – it’s awfully complex and unusual given the encroachment was effetely done by the person upon who’s Lot the encroachment take place. (If that makes sense).
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