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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). 

    1. Essentially, Lot B’s previous owner built a structure that encroaches upon his own area
    2. So, to further complicate things:
    3. 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.
    4. 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.
    5. We have also learned that the new owner spoke to our BC Manager about this situation back in early October. 
    6. 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.
    7. 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!
    8. The BC Manager conducted investigations into the situation in December but again, neglected to tell us (the owners!!!) about the situation.
    9. 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!
    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.
    11. It became evident that due process had not been followed – for example, the new owner had no written consent to conduct works.
    12. 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.
    13. On Monday 18 Dec, the new owner left a nasty letter on our doorstep advising she would commence removing fence next day (Tuesday)
    14. We tried to communicate with Committee but nobody would speak to us.
    15. The Secretary of the Committee resigned
    16. 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)
    17. 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.
    18. We calmly reminded her she is not permitted to do so but she insisted otherwise.
    19. 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
    20. 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.
    21. 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.
    22. A few nights later, the Treasurer of the Committee resigned.
    23. 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.
    24. 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.
    25. 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)
    26. 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.
    27. 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.
    28. 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.
    29. 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.
    30. One look at the changes she would impose would lead anyone to see how devastating it would be for us.
    31. So again, we didn’t create the encroachment, her previous owner did.
    32. 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
    33. Our BC manager didn’t bring this to our attention before owner Lot B’s contract closed.
    34. 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.
    35. We want to submit an Interim Order for Adjudication to BCCM.
    36. 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.
    37. Can anyone give us advice on this?
    38. 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?
    39. 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).

Viewing 15 replies - 1 through 15 (of 25 total)
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  • #28936
    Jimmy-T
    Keymaster

      If I am reading this correctly, the new owner wants to return the property to its original state as per the plan, and that plan did not include a fence.

      If that’s the case, then there’s your leverage.  She can remove her fence but you will fight tooth and nail to prevent her erecting another one (until a compromise can be worked out).

      Meanwhile, you want to get an interim order from NCAT to prevent any further work until this is resolved.

      And you really, really need to talk to an experienced strata lawyer as soon as possible.

      And get yourself elected to the committee to replace one of the others who are jumping ship.

      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.
      #28937
      scotlandx
      Strataguru

        Charming. Are you sure you want to live next door to such a delightful person?

        What you could have done with owner B is irrelevant now.

        Jimmy’s right, get a lawyer as quickly as possible, and get an interim order.

        #28938

        @JimmyT said:
        If I am reading this correctly, the new owner wants to return the property to its original state as per the plan, and that plan did not include a fence.

        If that’s the case, then there’s your leverage.  She can remove her fence but you will fight tooth and nail to prevent her erecting another one (until a compromise can be worked out).

        Meanwhile, you want to get an interim order from NCAT to prevent any further work until this is resolved.

        And you really, really need to talk to an experienced strata lawyer as soon as possible.

        And get yourself elected to the committee to replace one of the others who are jumping ship.  

        Thanks for your reply JimmyT

        We are preparing an application for an Interim Order via BCCM.  We are in Qld.

        The application must include final orders for an Adjudicator to consider.

        Just quickly: what is process to get elected to Committee? 

        The a Committee member has indicated she wants us all to “sit down around the table” and have a chat to work things out.  

        We would like to engage the BCCM Conciliation process.

        Do you think the BC Manager should have told us about this when she first learned about it in October?  This was many weeks before Lot B was sold.

        We will continue to look into engaging a Strata Lawyer.  Not feeling confident that it won’t be throwing good money after bad.

        #28939

        @scotlandx said:
        Charming. Are you sure you want to live next door to such a delightful person?

        What you could have done with owner B is irrelevant now.

        Jimmy’s right, get a lawyer as quickly as possible, and get an interim order.  

        Thanks for your reply scotlandx.

        Yes, she is charming indeed.  We hear her ranting and raving all the way from the other side of our house.  But we love our home, it is in a beautiful bush setting and was a unique find.  It would be very hard to leave but now feeling very invaded by this unreasonable person.  Anyway.

        It seems so unjust that our BC Manager didn’t bring this to our attention as BC Members way back in October.  Surely that’s a breach of conduct?

        We will continue to prepare our application to BCCM for interim order and final orders by Adjudicator.  Not sure exactly what grounds we have though.  I guess that’s what a Strata Lawyer could advise.

        #28940

        Update: we have submitted a letter to the BC Committee requesting “retrospective approval” of works conducted on Common Property between Lots A and B.  Hopefully they will consider this.

        Again, how do we get on Committee?  We’ve been told the awful neighbour wants to get on the Committee.  Is it appropriate to approach other BC Members to make them aware of the situation at hand and to encourage them to vote us on to Committee and perhaps dissuade them from voting her on?  We are not deceitful or nasty people and have conducted ourselves with respect at all times so we don’t want to do anything that makes us look bad, however we do want to make use of any reasonable opportunities available to us.

        #28941
        Jimmy-T
        Keymaster

          Qld strata law is definitely NOT my area of expertise but you will find more about the workings of a committee HERE.

          It does sound like this person is a bully and a potential pain – with that in view, don’t hesitate to assert YOUR rights, because she certainly doesn’t have any problem pushing hers.  There is nothing sneaky or underhand about wanting to be on the committee and even if your neighbour gets on, the committee can’t pass by-laws or anything significant like that.  Thathas to be done at a general meeting.

          I would get yourself acquainted as soon as possible with Body Corporate processes (and you can start by going HERE) and I certainly wouldn’t start by having a go at the strata manager.  He or she could prove your most powerful ally

          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.
          #28942
          scotlandx
          Strataguru

            I’m not sure how you will go on retrospective approval. The new owner bought the property with certain rights attaching to it, so query whether those rights can be displaced. As a preliminary, it is unlikely the Committee has any powers in relation to those rights, specifically I don’t think they have the power to change them. 

            In relation to the manager, they didn’t have any duty to advise you. It is not that I am not sympathetic, but you should focus on reaching a resolution with the neighbour. 

            #28945
            Jimmy-T
            Keymaster

              You might also ask your strata manager to explain the difference between common property and lot property, as well as “exclusive use”.

              The key to this is that the owner can’t do what she wants with common property and that includes building a new fence without the permission of the owners corporation.

              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.
              #28947

              @scotlandx said:
              I’m not sure how you will go on retrospective approval. The new owner bought the property with certain rights attaching to it, so query whether those rights can be displaced. As a preliminary, it is unlikely the Committee has any powers in relation to those rights, specifically I don’t think they have the power to change them. 

              In relation to the manager, they didn’t have any duty to advise you. It is not that I am not sympathetic, but you should focus on reaching a resolution with the neighbour.   

              The angle I’m taking here is that the area in question remains Common Property over which the BCCom makes decisions in the interests of the BC (all owners).  They have the power to approve and disapprove regardless of whether the area is for Exclusive Use.  Technically, they can approve any structure and they can disapprove of any activities to remove or install any structures on Common Property (including for Exclusive Use).  

              While we will endeavour to go through the motions of a “chat” with the Committee and the owner, and even engage Mediation and Conciliation from BCCM, I doubt she will budge.  The manner in which she has gone about claiming this area and complete and utter disregard for us has demonstrated she is hardly willing to negotiate/reason or compromise.  But we will try.

              #28948

              @JimmyT said:
              You might also ask your strata manager to explain the difference between common property and lot property, as well as “exclusive use”.

              The key to this is that the owner can’t do what she wants with common property and that includes building a new fence without the permission of the owners corporation.  

              Exactly our point.  The neighbour needs to comprehend the concept of Common Property and that Exclusive Use does not convey ownership but is still subject to all Common Property By-Laws.  At this time, she has not grasped this.  Unfortunately, the BC Manager has failed to inform her (not that this is her job, neither is it ours) but has MISinformed her by explicitly telling her she “owns” the area.  

              We expressly referred her to By-Law 40 (d) which states to the effect that an owner may not make any changes whatsoever to an area for Exclusive Use without the WRITTEN CONSENT of the Committee.  (Which, at this time, she does not have).

              Unfortunately, we are being kept in the dark by the Committee but this also has to do with it being the Xmas/New Year holiday period, and the Strata office instructions to suspend everything until they reopen on 4 January 2018.  So the Committee is sitting tight and we have to hang on tenterhooks indefinitely.

              #28949

              @JimmyT said:
              Qld strata law is definitely NOT my area of expertise but you will find more about the workings of a committee HERE.

              It does sound like this person is a bully and a potential pain – with that in view, don’t hesitate to assert YOUR rights, because she certainly doesn’t have any problem pushing hers.  There is nothing sneaky or underhand about wanting to be on the committee and even if your neighbour gets on, the committee can’t pass by-laws or anything significant like that.  Thathas to be done at a general meeting.

              I would get yourself acquainted as soon as possible with Body Corporate processes (and you can start by going HERE) and I certainly wouldn’t start by having a go at the strata manager.  He or she could prove your most powerful ally  

              I am preparing information for Strata/Property lawyer to advise.  Thanks for the links to BCCM site – it is a valuable resource.  

              Yes, she is a bully.  We will not lie down and take it.  We have rights and we would like the situation to be assessed by an Adjudicator who’s final decision I can respect.  

              Making and removing an Exclusive Use By-Law must be done by a GM without dissent.  The reallocation of EUA can be done by owners via written agreement.  (It sucks because this would have taken place between us and the previous owner, had we had the chance to do so.)  

              You are right about putting anyone offside.  It’s a really delicate situation.

              #28951
              Lady Penelope
              Strataguru

                This is a tricky situation and one that I am not certain that you, as the Owner of Lot A will achieve an outcome that you are hoping for.

                Both you and your neighbour have an exclusive use right to the common property. The boundaries of this exclusive use grant of common property have been recognised in the CMS and the Registered Plan.

                Did your due diligence when you were purchasing your Lot and reviewing the Registered Plan reveal that you were purchasing a property where the fence did not reflect the boundary line?

                There appears to have been undisputed usage of Lot B’s exclusive use area for a period of time via some sort of personal arrangement between the two adjoining properties. That personal arrangement was never formalised in a way that gave it any legitimacy under the Act.

                It may have suited the owners at that time but that arrangement did not automatically continue on when the Lot’s changed ownership i.e. the arrangement did not ‘follow the land’.

                Undisputed usage does not of itself entitle you to a recorded grant of exclusive use. It has been determined in several Tribunal decisions that the usage of an area, even on a continuing basis and for a long period of time, is not sufficient to acquire exclusive use rights and is not evidence in itself that a valid grant has been made.

                It has also been held in several Tribunal decisions that whether or not the Body Corporate or individual owners paid for any works relating to any of the exclusive use areas is of limited evidentiary value in determining  exclusive use rights. 

                If you want to acquire formal exclusive use of part of your neighbours exclusive use area then there is a process that you would need to go through.

                You would need to submit a motion to a general meeting to record a new CMS which amends the existing exclusive use By-law.

                This would probably involve the Registrar of Titles requiring a survey plan to be prepared to identify the new exclusive use area.

                A motion proposing this expansion of the exclusive use allocation to you from a portion of your neighbour’s exclusive use area would require a resolution without dissent. Your neighbour will obviously object and therefore the motion will not pass.

                If a motion was submitted and did not pass, you could potentially challenge that decision if you were able to assert that the opposition of your neighbour to the motion was unreasonable in the circumstances.

                You have stated that the arrangement has been in place for 7 years (fence) and 10 years (slab) and you were querying  whether acquiescence may help your case. I do not believe that acquiescence will be applicable in this situation where another person’s right to the full usage of their exclusive use is being impacted.

                Boundaries are quite different from fences. The location of fences do not always represent the legal boundary of a Lot.

                The owners of Lot B cannot ‘encroach’ on their own exclusive use. The owners of Lot B were within their rights to erect a fence (the type of fence being apparently subject to BC approval) within any portion of their exclusive use area to suit their particular needs. The erection of a fence within their own exclusive use boundary does not mean that the boundary has changed.

                Another avenue that you may be considering is ‘adverse possession’. The time frame does not fit within the definition of ‘adverse possession’. The relatively short time frame and the fact that ‘adverse possession’ refers to the acquisition of ownership of the land rather than to exclusive use would probably negate this argument too. 

                Unfortunately it may not be good news for you.

                #28952
                Jimmy-T
                Keymaster

                  It seems clear from Lady P’s excellent response above that you have a stalemate here.  The new owners can (probably) remove the fence without anyone’s permission, but she can’t put up a new one without yours.

                  I would say this situation would benefit greatly from a mediation with a view to reaching a compromise that allows her to reclaim her area of exclusive use without impacting unfairly on you.

                  Compromise and negotiation is the only way you and she will achieve an outcome that doesn’t lead there being no fence at all.  But if that would suit you, then so be it.  She probably can’t ‘move’ the fence without your approval and the sooner she accepts that, the better.

                  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.
                  #28953
                  Lady Penelope
                  Strataguru

                    missfeather – Have you asked your neighbour whether you may buy the portion of their exclusive use area? It may be worth considering, particularly if you make it an attractive sum of money

                    Here is an example of a Motion for the purchase of an area of exclusive use that was subject to encroachment of a pergola. The Motion was submitted to an EGM, however it was defeated. Miriwinni Mews [2015] QBCCMCmr 214

                    Transfer of Common Property

                    That the body corporate consent to the transfer of the unencumbered indefeasible title of the 6m2 part of the common property that is identified in the attached plan marked ‘A’ (“Area”) to lot 2 on the following conditions:

                    1. Payment by the owner of lot 2 of compensation to the body corporate in the sum of $2,500 including GST (if any) ; and
                    2. Payment by the owner of lot 2 of half the cost of documentation required to give effect to the transfer of this area including, the preparation of survey plans, transfer documentation and a new community management; and

                    1. Payment by the owner of lot 2 of half of any transfer duty and transfer fees that are payable in respect of the transfer of the area;

                    And that the body corporate consent to and execute such documentation that is required to give effect to the transfer and register the same in the Titles Registry.

                    #28955
                    Lady Penelope
                    Strataguru

                      With regard to the type of fence that should be constructed …. 

                      Are there other fences between the exclusive use areas of other Lots? If so, what material are the fences made from? Did the Body Corporate pay for the construction of the fences or was the payment negotiated between the adjoining owners?

                      Generally, there should be a dividing fence if one of the neighbours requests one. If Lot B wants a fence erected then you as the owner of Lot A cannot prevent a fence from being erected.

                      The fence should be constructed of the same or similar material that is common at your scheme. This should not then offend any ‘Appearance of a Lot’ by-laws.

                      For fences within a strata scheme between lots the two lot owners affected will be responsible.

                      Generally, if both Lot A and Lot B will receive a benefit from the fence between their two respective exclusive use areas e.g. the benefits of: privacy; safety for children; restraint of pets etc, then both owners should contribute equally.

                      Some useful information about who pays for the fence between two exclusive use areas is here: https://mybodycorpreport.com.au/body-corporate-fences/

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