Offensive fence

As the the old saying goes, a verbal agreement isn’t worth the paper it is not written on.  A lot of problems arise in Strata Schemes when informal arrangements are made.  I’d agree with Fair Trading that the common property remains, and that you shouldn’t touch the fence.  Your wish for the common property to return to its original use seems quite reasonable.  The options available to you are set out in the dispute resolution procedure available from Fair Trading.  The first step is mediation, if that is unsuccessful you can apply for adjudication of the matter.   Just do a search for strata dispute resolution and you should find the relevant fact sheet.

There are modest fees for the process, which should not deter you from taking this action.  Good luck!

Bean16 – Whilst I agree that you should take the matter to mediation using THIS form, IF no agreement can be reached, then I’m not so confident about the NSW Civil and Administrative Tribunal (NCAT) ruling in your favour in circumstances where your argument is that you agreed to an informal arrangement when you and the adjoining Owner were on good terms, and where after some years you want that formally undone because that relationship has deteriorated. That’s how a Tribunal Member may see it!

The former Consumer, Trader, and Tenancy Tribunal was a strange place where Members often brought down some decisions that I personally found equally strange (or at least illogical), and I’m not so sure that the metamorphosis of that organisation into the NCAT has changed all that very much; different horse same jockeys.

I’m inclined to suggest an additional step in the process, but in order for that to work I first need to know the units of entitlement applicable to each of the Lots in your Plan and whether you have a Strata Manager. Could you please provide that detail?

Thanks for providing that additional detail, but regrettably it negates one of the other options that I was contemplating.

Please don’t take this as a criticism, but managing disputes in two-unit Strata Schemes is difficult enough particularly when the units of entitlement are equal, but doing things on the basis of a wink and a nod can be a recipe for disasters; as you’ve now found out.

Anyway, that doesn’t really help.

So in preparation for Mediation, if you haven’t done so already, you should put pen to paper and as politely as you can in the circumstances, advise your neighbour that you have just become aware that the informal arrangement previously agreed to whereby they have the use of an area of Common Property contravenes various provisions of NSW Strata Schemes Management Act (FYI both Division 4 and Sections 65A & B; but I wouldn’t mention that), and that consequently you are of the opinion that the situation needs to be corrected without delay by them removing the fence and everything else that they’ve placed on that Common Property.

Invite them to respond to your request within say 30 days.

If your neighbours respond in writing or otherwise, you need to keep that response and/or notes of who said what and when, and if they don’t respond cooperatively or at all within the timeframe that you’ve suggested, then your openly polite approach and detailed notes can only assist you in the formal Mediation process, which by the way you should also politely inform them about if you have to go that way.

It’s good that it’s going to be by-the-book from now, lesson learnt, and just so you know what’s in the book (even for 2-Unit Schemes), have a careful read through THIS to see what else the two of you may have slipped-up on.