Flat Chat Strata Forum Common Property Current Page

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  • #8283
    byron twain
    Flatchatter

      We own the downstairs dwelling of a 2 dwelling 2 Storey Duplex and the Common Property lawn area is directly adjacent to our mainly glass living/dining and kitchen areas.

      As such any use of it by those living in the upstairs dwelling causes a lot of disruption and massively diminishes our amenity and living conditions.

      As the lawn sits atop ocean view clifftop and the upstairs has a massive deck from which to partake of the view we would like to create sole usage of the lawn in our benefit and in return offer the Owner of upstairs sole use of roof space above her dwelling so she could develop both indoor and outdoor space  accordingly as a quality quid pro quo.

      Should the Owner of upstairs be against this idea which By-Laws or Mediations etc may be available to us in an effort to maximise all Parties’ amenity and enjoyment of the 2 dwellings.

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    • #16032
      byron twain
      Flatchatter
      Chat-starter

        Hello again, I am very interested in any views on this query and would love to read the thoughts of Flat Chatters , come on, someone must have had a similar situation to this either as the requester or the requested of—

        #16034
        Jimmy-T
        Keymaster

          Hey Byron, your original title was “Common Property Dilemma” – hardly stands out from the crowd if you want an instant answer in a thread about Common Property.

          There’s not much you can do to force the upstairs owner to accede to your plan unless you have more than 75 percent of the Unit Entitlements (and I’m guessing they’ll be more like 50-50).

          Talking is always the best way and in your case you need to bring enough sweeteners to the table to make the upstairs neighbour WANT to do what you want, rather  than just allow it.

          Find out what would make this an attractive proposition for her then add a bit more.  Once you’ve got agreement, it’s just a case of getting it all in writing so everyone can agree and sign off on it.

          But make this a positive move, rather than a challenge to her rights, and that will go a long way to you getting what you want.

          You could go to Fair Trading with a case about how the upstairs use of common property diminishes your value, with claims about noise and inappropriate behaviour or whatever – if you want to turn your home into a war zone for the next few years.

          Talk and, even more important, listen, and you might just get what you want.

          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.
          #16040
          byron twain
          Flatchatter
          Chat-starter

            Thanks Jimmy, that’s a much better title and as it was my first post I’m certain to improve rapidly.

            Agree with the summation, it being pretty much what we were thinking, the only problem we have is the Upstairs Owner who is a little bit less practical and realistic then we are about the advantages both in lifestyle and in commercial terms which would devolve to her resultant from the right to build more usable interior space as well as a commanding roof garden to add to her existing balconies. We might try and get her to look at getting an approved DA for the possibility which we could help her with on the payment side etc.

            Any other thoughts welcomed.

            #16051
            byron twain
            Flatchatter
            Chat-starter

              I have been looking into this situation some more and have discovered that when the whole duplex property was renovated by us and the upstairs owner about 12 years ago, quite a number of square metres in the common property roof-space above her dwelling were utilised to allow her to have extremely high ceilings, open plan vertical space if you will.

              We did not explicitly agree to this and it appears to have “slipped through to the keeper” as it were amongst the rash of plans, drawings and the like associated with the renovation and my wife only became totally aware of it after it had been built at which time of course we believed we could do nothing about it.

              Is there some sort of “Statute of Limitations” applying to a situation such as this or would we be entitled to use this inadvertently/unknowingly released CP space as leverage in any discussions to do with our wish to create the situation I initially enquired about.

              Can any action be taken, (if the outcome requires it), to allow the upstairs owner to make good this error.

              Thanks

              #16055
              scotlandx
              Strataguru

                If that (air) space is shown on the strata plan as common property, then the owners corporation owns it, not the lot owner.  Taking another example, say there was a laundry in a block of apartments that was common property and an owner converted that laundry for their own use, then the OC could take action against that owner in relation to their use of that space.  There is no statute of limitations because the strata plan shows it as common property.

                There have been cases on this, in the ones I have seen the person has had to reinstate the common property to what it was.  I don’t know how that would work with air space, but in theory the principle should be the same.  This is presuming when the renovations were done that no special by-laws were created giving the other owner exclusive use of that air space, but that would have been noted on the strata plan.  So I suggest you have a look at the strata plan.

                Jimmy is right, you don’t want to get into a war with your neighbour, it could cause you a great amount of grief.  So think about how you want to approach this very carefully.

                #16065
                byron twain
                Flatchatter
                Chat-starter

                  Thanx Scotlandx,

                  Upon further enquiry I discover that the space I was talking about was actually NOT roof space CP above the original building footprint but enclosed air space which was created as a result of the renovation extension. 

                  Apparently we agreed to the upstairs owner creating a room in what had been roof space CP above and at the very back edge of the original building footprint and this agreement seems to have evolved to include the creation of the high ceilinged new room above our new ground floor rooms.   

                  Hence the upstairs dwelling has a 2 storey high single level living space which it would not have been possible to create without the unagreed exploitation of what in normal circumstances would have been CP roof space. 

                  I know it sounds as if we are rather clutching at straws here, or should that be clutching at Architects Drawings, but can their be such a thing as theoretical CP in this sense. 

                  Thanks again. 

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