Flat Chat Strata Forum Common Property Current Page

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  • #8430
    Dean
    Flatchatter

      A good question for a Friday!

       

      In our block of town houses, one owner decided to rip out a large portion of the landscaped common property garden and plant some vegetables.  A formal complaint was submitted and the strata managers told the OC to reinstate it to its previous state.  Everyone was too scared to point at the owner who did it, so the OC must pay for it.

       

      Now they are talking about calling an EGM to grant that owner exclusive use, presumably so we don’t have to pay for it to be fixed.

      Can the OC retrospectively grant an owner exclusive use?  Or does the area need to be reinstated first and then exclusive use granted?

       

      Any advice would be much appreciated!

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    • #16653
      scotlandx
      Strataguru

        Taking this step by step:

        1. The Strata Manager can’t order the OC to reinstate the garden (unless he has extensive delegated powers and is standing in the shoes of the OC). 

        It is up to the EC and/or the OC to decide what they want to do about it.  They have a number of options – they could decide to do nothing, or they could decide that it is a breach of a by-law (refer below) and issue the owner with a notice to comply telling them to reinstate the garden.  As a formal complaint was made, the EC does have a duty to consider that complaint and make a decision about it.  The OC doesn’t necessarily have a duty to reinstate the garden.

         

        2. Under the standard by-laws, the owner ripping up the common property garden and planting vegetables is a breach of by-law 4, you should have something along those lines.

        4 Damage to lawns and plants on common property

        An owner or occupier of a lot must not, except with the prior written approval of the owners corporation:

        (a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or

        (b) use for his or her own purposes as a garden any portion of the common property.

        3. Why is everyone too scared to hold the person who did it accountable?  Does it not bother anyone?

         

        4. Yes, you can retrospectively grant exclusive use.  What you would be doing is asking the owners corporation to approve what the owner had done, i.e. the damage to the common property, and then approving a by-law giving that owner exclusive use of that area, which would include that owner being responsible for the upkeep of that area, most likely in perpetuity.  Any costs associated with drafting and registering the by-law should be met by the person benefitting from the by-law, i.e. the owner who pulled out the garden.

        There are some things you need to consider if you want to go down that path.  Essentially you would be giving the owner a part of the common property that is currently owned by all of you.  That property has value.  I wouldn’t agree to that unless the owner paid an amount of money representing that value.  You would also need to consider where the area is and if others need to pass through it or access it, because if that is the case and the owner has exclusive use, that makes things difficult.

        Personally I would not agree to something like that because essentially you would be rewarding somebody for doing something that is wrong.  Following that logic someone else could come along and do the same thing, and expect to be given another piece of common property. 

         

        5. There is another option which is probably the simplest.  The OC can reinstate the garden, and bill the owner for the cost of reinstatement.  This would likely follow after you have issued a notice to comply, if the owner failed to reinstate the garden.  If necessary, you could then seek an order from the CTTT, which may include a penalty for the breach.

         

        As a general observation, it puzzles me why owners feel reluctant to pull owners up when they breach by-laws, specifically those relating to damage to common property.  We are currently dealing with someone who has done quite a lot of damage to the common property, despite being told 3 times that they must not.  Some of the owners feel that we shouldn’t rock the boat, and it will cause disharmony.  To me that just means that the owner is likely to do it again, when they are the one causing disharmony.

        #16654
        Jimmy-T
        Keymaster

          Firstly, I don’t disagree with anything Scotlandx has said below and if the decision is to reinstate the garden, the person who ripped it up should pay the bill (as outlined in the strata Act.

          I would imagine that a half decent awareness campaign would make sure this person did not get the requisite 75 percent vote allowing them to annex the garden.

          However, there is another possibility here and that is the establishment of a communal garden where residents can work together and collectively to create a communal vegetable and herb garden and literally enjoy the fruits of their labours.  The GreenStrata website has a number of case studies on how this has worked in many inner city buildings HERE.  It’s worth a look and may offer a non-confrontaiional compromise solution that works for all concerned.

          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.
          #16651
          scotlandx
          Strataguru

            Whatever you decide to do, in the mean time I would help myself to the vegetables in the garden, because they are on the common property. Laugh

            #16658
            Sir Humphrey
            Strataguru

              I would second the community garden idea. They are all the rage. Anywhere there is a community garden there is a waiting list to get in. It would be a win-win compromise for all. The principle that this is common property would be upheld. Unilateral annexing of common property would not be rewarded by giving it away but nor would there be the unedifying sight of ripping out a productive garden and reinstating a decorative garden that perhaps no-one really benefits from or uses.

              I think the next thing to do is to draft a bylaw for use of the community garden. I would suggest the EC allocates plots on a year by year basis to any interested resident. You have to give up your plot if it is not being used or not kept tidy. If demand is high the plots will be subdivided so all units have an opportunity to use part of the garden. Note that some might want only a little corner for a few tomatoes while others might want to grow a great variety and quantity. Have some process for fair and flexible allocation. 

              You might want to use some OC funds to develop it further with certain one-off costs, say paving between rows, fencing around the whole area, or some screening planting from more formal garden areas. That would be justified as improving a community facility. On the other hand manure/compost/mulch for one’s assigned plot would be at your own cost. Depending on your situation you might prefer a shared compost area that could take kitchen scraps or you might require people to prepare compost within their own unit areas. 

              I suggest you use this as an opportunity! Tell the person who did this that it was not really done the right way, the OC really cannot tolerate a land grab, but, now that it is done, this person and the OC could make something of benefit to all out of it. 

               

              Back in 1976 our OC adopted the following at its first general meeting. The language is a bit dated now but I think it is essentially sound. Community gardens went out of fashion and our early one was disbanded. Recently we tried to reinstate it and it met with significant opposition and did not get up. 

               

              “7.         The Corporation may set aside a portion or portions of the common land for gardening purposes and permit in writing members to use that land or parts thereof to grow plants or keep animals or birds thereon SUBJECT TO any conditions which the Corporation may impose.

               

              8.      (1) Every member who obtains the use of any garden area under the preceding Article:

               

              (a)  shall not use the same EXCEPT as a garden and for the purpose of growing plants or keeping animals or birds and shall not grow or keep animals or birds or permit to remain on the garden allotment, EXCEPT with the written permission of the Corporation, any plant or animal or bird EXCEPT a plant or animal or bird grown for food or other domestic purposes PROVIDED THAT if the Corporation considers that a plant or animal or bird whether grown or kept for food or other purpose is noxious or causing a nuisance may require the member to remove the same and the member shall forthwith comply; and

               

              (b) shall at all times keep such garden allotment well cultivated and tended.

               

              (2)          If the member shall be guilty of a breach of any conditions subject to which a member has been granted a garden allotment or of any of the conditions in the preceding subsection the Corporation shall without prejudice to my other rights or remedies of any kind, be it liberty by its servants, agents or workmen to enter into the garden allotment and to remove and/or destroy the animal or bird or plant planted or remaining in the garden allotment in contravention of such condition and to remove any fertilizer, herbicide or insecticide or other chemical prohibited in such conditions and/or to apply any substance to the allotment on any part thereof to any plant growing thereon to neutralize or counteract the effect of my such fertilizer, insecticide, herbicide or chemical.

               

              (3) Without limiting the generality of this article, the Corporation may grant garden allotments subject to conditions relating to access by other members, use of water and drainage and fees chargeable for use of garden allotments.”

              #16666
              Whale
              Flatchatter

                Anything but firm action by the Owners Corporation (O/C) could easily result in the practice of residents annexing areas of the Common Property garden-space becoming endemic.

                Whilst I don’t disagree with the community garden solution, it’s hardly firm action, and shouldn’t that solution be something initiated by the Executive Committee on behalf of all Proprietors and not an expedient solution to appease one Proprietor who has Breached the (standard) By-Law 4 to their personal benefit?

                So my answer to the question would be to agree with those of my fellow contributors who recommend the issue of a Notice to Comply to the gardener, together with a requirement that they either reinstate the Common Property or pay the O/C’s costs to do so.

                #16670
                Sir Humphrey
                Strataguru

                  @Whale said:
                  …and shouldn’t that solution be something initiated by the Executive Committee on behalf of all Proprietors and not an expedient solution to appease one Proprietor…

                  Absolutely. The EC should make it clear that the one proprietor did not have the right to annex common property. The EC could put it to a vote of the OC to choose either to take advantage of the situation to have a community garden partially established at no cost or effort them or to require the one proprietor to reinstate the previous garden style. This would make it very clear to owners generally that annexing common property is not tolerated. 

                  #16671
                  struggler
                  Flatchatter

                    I absolutely agree that firm action must be taken against this owner for making his own changes to common property. We had an owner who changed he common property area outside his unit because he apparently didn’t like it and thought his change was much better. Some of the bleeding hearts on the EC did think of just letting it go. But common sense prevailed when it was brought to their attention that it would be a free for all in the complex with all owners changing what they didn’t like. If you don’t take action against one, you can’t take it against another. He was made to reinstate at his own cost.

                    Despite taking action against this owner and getting him to reinstate the common property, he went and did it again elsewhere, and the EC went and took a action again. But thankfully, other owners have taken notice and we have had no changes to common property since.

                    #17035
                    Charlie
                    Flatchatter

                      Hi everyone,

                       

                      I can appreciate the thoughts here around people doing their own thing on common property and trying to get away with it. I have an unusual position and would love some community feedback. 

                      I have posted my issue in the “common property” forum about the use of a patio that is actually registered on strata as common property. ie. It isn’t drawn into the strata plan as part of our lot.

                       

                      When we bought the ground floor unit ( 4 years ago ), the tiled area outside our door was already there and the previous owners used it by having a small table and chairs on it. From what we can tell, it has been there since the building was built. ie 35 years ago. Until now we have never had an issue.

                       

                      It is a tiled areas that is on one concrete slab that run across two ground floor units. There is also a divider between the two units.

                       

                      The area has to be dug up to treat a concrete roof of a carpark underneath it. Some of the unit owners are hesitant to replace the tiled area as they feel it is common property and they don’t benefit from its use (like we do).

                       

                      They have called an Exec Committe Meeting to propose not replacing the tiled patio area outside out door by means of special resolution to go to the OC.

                       

                      We are extremely reasonable in our use of the patio area, far from damaging common property or causing disruption to others. The grassed area that flows from the patio is never accessed by other residents, but is left completely unobstructed and clear.

                       

                      Any thoughts greatly appreciated Laugh

                      #17037
                      Jimmy-T
                      Keymaster

                        I’m guessing the patio is common property for the sake of maintenance and repair but you have exclusive use of it as implied in the strata plan.

                        Have a look and see if the balconies aren’t also common property (as they are in most modern buildings). This is exactly the same arrangement as operates for them, the only difference is that open landscaping makes your terrace look like it’s a community facility.

                        So if your neighbours are intent on resuming your patio, ask how they intend to allow you to use their balconies for barbecues and drinks in the coming months. What’s sauce for the goose …

                        The Owners Corp has an absolute responsibility to maintain and repair common property. If they force you to take this to the CTTT they will lose. Tell them to stop being so bloody selfish or you will take action at the CTTT to show that the Executive Committee and Owners Corp is dysfunctional and have them replaced by a statutory strata manager.

                        Or you’ll be having sunset drinks on a different balcony every night for the rest of the summer.

                        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.
                        #17039
                        Charlie
                        Flatchatter

                          Thanks JimmyT,

                           

                          You are correct that for the purposes of maintenance and repair the balconies are common property. I wish it was that simple.

                           

                          The balconies are actually included in their strata unit entitlements/levies, and the patio that extends from our unit is not. The registered strata plan does not include the patio/landing in the drawings (which is unfortunate).

                           

                          We pay our share of strata fees just like anyone else and have contributed to the special levies for this major works, but some of the owners on the EC  have an issue with us not paying for the extra entitlements not included on the strata plan for the patio. We would be prepared to pay that, but they want to go to vote on special resolution before we have even discussed this.
                           

                          Does that change your perspective in any way?

                           

                          Regards

                           

                          Charlie

                          #17046
                          Whale
                          Flatchatter

                            Charlie – I think your questions have been answered via responses to your other post, but with regard to this one and my response to the other post, I’d add that if you’re successful in negotiating the exclusive use of your landing, the Owners Corporation can either request a once-only contribution from you (to its bank account of which you benefit from a 1/13 share anyway) of an amount equivalent to the increased value of your Lot that arises because the landing’s effectively part of it or submit a “Revised Schedule of Unit Entitlements for one or more Lots” supported by a Valuer’s Certificate to NSW Land & Property Information and thereby formally revise the Levies applicable to your Lot.

                            Both oprtions require a Special Resolution at a General Meeting (at least 75% of Owners present at the Meeting in person OR by proxy have to agree), and whilst the former option is the more common approach, which shouldn’t amount to much ($) as no other Owner/s ever have or could make effective use of the landing anyway, but as some Owners have queried your Unit Entitlements / Levies already, the latter may suit them.

                            That’s it from me.

                            #17048
                            Charlie
                            Flatchatter

                              Thanks Whale, Very sound advice.

                               

                              Its the piece “the latter may suit them” ie. The OC determines what they want, which is the ambiguous part – I was hoping there was a firm law that stated “one way or the other” so there was no squabble – just a pre-determined outcome.

                              I guess the next step is to present those options as alternatives as part of submitting a request for a special resolution as means of compensation for exclusive use of the patio area – I get it. Its a pity its taken 35 years for this to become an issue.

                              I will stand firm on the OC replacing the concrete slab/tiles in the first instance and that the exclusive use and bylaw is a secondary step.

                               

                              Charlie Laugh

                              #17057
                              Whale
                              Flatchatter

                                Charlie – my last post must have been “almost it” !!

                                I only mentioned the “or” option involving a valuation of your Lot and a Revised Schedule of Unit Entitlements because your earlier post stated the some other Owners in your Plan had the irrits because you had the use of the landing, but it wasn’t reflected in your Levies.

                                Cl 53 of the NSW Strata Schemes Management Act states that an Exclusive Use By-Law may include Conditions – such as one “requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation“.

                                As this (above) is the more commonly adopted option for circumstances such as yours, probably because it’s the one used as an example in the Act, just steer your Owners in that direction at the Meeting, ignore the “or” option, and that should negate any ambiguity and result in a determination of the once-only payment that you prefer.

                                By the way, it’s usual for the beneficiary of the Exclusive Use By-Law to pay for its drafting and Registration, with the quid-pro-quo being that it cannot be revoked (ever) by the Owners Corporation without the concurrence of the Owner from time to time of your Lot (i.e. you and any future Owners). 

                                Good luck!

                                #17060
                                Charlie
                                Flatchatter

                                  Thanks Whale, 

                                   

                                  That is 100% it. You have been extremely helpful. Thank you for your advice.

                                   

                                  Charlie 

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