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  • #8530
    Paul2000
    Flatchatter

      On our strata plan there is a small storage area under the stairs to the upper floor which opens to the courtyard of one lot. The area is only approx 1.5 m high and probably 3 m deep. The owner has rented out the lot for at least 20 years or so and the storeroom has not been regularly used by the OC mainly because of difficulty of access through the lot. Having to get permission for access etc.

      The whole area is clearly shown on the strata plan as Common Property but the owner is now claiming that it is part of his lot as when he bought in originally the Real Estate Agent said that it was (!). The OC now wish to store materials in the small store room but the owner is denying access even though the tenant is quite amenable to us using the space. There are a lot of materials in the store room which are obviously CP items, roof tiles etc.

      This owner has submitted a new Strata Plan to us for approval to recognise that major extensions to his lot carried out in the late 1980’s were not on the SP. The new plan also shows this area as common property (as it is under the stairs). And I have spoken to the surveyor who agrees. This lot owner has also been paying levies based on the original building footprint and not the 40% increase in the size since he renovated. Consideration to altering the entitlements is a further issue to discuss!

      As far as I can see the EC can not approve the proposed strata plan because the owner is now disputing the definition of common property as drawn up by his own surveyor. The owner just says “approve it and we can discuss the other issues later”. 

      Question:

      1. Can the lot owner deny access to the common property storeroom because access is only through his lot?

      2. Is it correct to say that the only way that the lot owner can have exclusive rights to this piece of the common property is by:

           (a) an exclusive use by-law

           (b) purchasing it from the OC

      Any further comments would be appreciated.

    Viewing 6 replies - 1 through 6 (of 6 total)
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    • #17074
      Whale
      Flatchatter

        Paul,

        I know this wasn’t one of your specific questions, but to clarify, are you saying that 20+ years ago the current or previous Owner of the Lot in question undertook renovations that increased the area of that Lot by 40%, and that as those renovations have not ever been noted on the Strata Plan (Title) or reflected by the Lot’s Unit Entitlement, it’s likely that they were never consented to by the Owners Corporation (O/C) and that the area is still Common Property? 

        It’s more important to sort out the above in my opinion, but in response to your questions about the storeroom:

        1) Except in an emergency Yes, unless the O/C has obtained an Order from an CTTT Adjudicator

        2) Yes to both, although as the Owner’s had exclusive use for 20+ years I don’t like your O/C’s chances of now refusing to grant that under a Special By-Law, with Conditions – including one about the O/C’s unrestricted access (to the storeroom).

        #17077
        Paul2000
        Flatchatter
        Chat-starter

          Thank you Whale.

          Just to clarify:

          The ground floor area of the lot was increased by 40% by the renovations which extended into the courtyard of the lot. (The total building area of the lot by something less than that). This has resulted in more building to paint and gutters to replace etc. The area “intruded” into was already part of the lot (ie the courtyard). The only common property affected was to the exterior wall and wall space which varied slightly.

          At the time, the OC approved the renovation and the local Council also approved it. Somewhat conveniently, the original, and still current owner, neglected to have the strata plan amended and now does not consider that the unit entitlements should be adjusted (again conveniently).

          It has never been considered that the owner has had exclusive use and the room has not been used by the owner as the lot has always been rented. As stated the room basically contains roof tiles and some tiles from all units and has not even been opened for many years.

          Regarding your suggestion (2), I don’t think an exclusive by-law could be granted with conditions which then gives access to the OC. This would be contradictory I feel.

          I suppose because of the owners arrogance regarding the renovations and non amendment to the strata plan for 20 years and now simply saying words to the effect that ..”it’s mine and always has been and I don’t care what the strata plan says…” makes the OC just a bit reluctant to simply pass it over.

          Our view (EC) is that whilst the owner is claiming part of the common property to be on his lot and disputing his own surveyors’ amended strata plan, we cannot approve the plan.

          If I were in the position of the other owner I would simply say “well I recognise that this small room is actually common property and I will make an offer to the OC to purchase it”.  But then again I am unfailingly reasonable and logical.

          #17079
          FlatChatFan
          Flatchatter

            Paul, if it were our OC I would hope that we would NOT agree to sign, as it could be the Owner is just trying to ‘tidy things up’ before selling.

             

            If you all agree to the demands, it is possible he gets a higher price for his property after not paying his correct proportion of levies for 20 years.

             

            I would be asking for him to pay back the outstanding additional levies plus interest, so the current OC benefits, before agreeing to anything.

             

            I do not know if that is legal, but is certainly sounds fishy he is in such a rush to get things sorted out now.

            #17082
            Paul2000
            Flatchatter
            Chat-starter

              Thanks FCF – agree with that.

              #17097
              Whale
              Flatchatter

                Thanks for that clarification Paul, and I’m glad (for your Owners Corporation) that things are not as out-of-control as I initially suspected, although I don’t know how your Plan’s Strata Managers and successive Executive Committees (E/C) have managed to allow such significant extensions to a Lot to not be shown on an amended Strata Plan and not be reflected in a revised Schedule of Unit Entitlements for that Lot.

                How to move forward?

                Well even though I don’t agree that unrestricted access over an Exclusive Use Area in order for an Owners Corporation (O/C) to access its Common Property isn’t possible, I agree it could be read as contradictory depending upon the frequency of the “un-restriction”.

                Nonetheless it seems to me that your O/C is being a little “dog in the manger” about the storeroom, which it really doesn’t need for any significant or critical purpose; does it? So you’ve probably hit the proverbial nail on the head in your “unfailingly reasonable and logical” statement as the best way forward.

                So taking that approach on-board, I think your E/C should advise the Owner of the extended Lot that whilst it will not itself approve of his proposal, it will support the O/C’s adoption of his amended Strata Plan at a General Meeting of all Owners provided he first undertakes (in writing) to:

                1) Pay the O/C’s costs to have a Revised Schedule of Unit Entitlements prepared by a Registered Valuer in advance of the General Meeting, showing a revised Entitlement for his extended Lot which recognises the additional maintenance and repair responsibilities of the O/C (e.g. the building & gutters you referred to), and;

                2) Pay the O/C’s costs to lodge that Revised Schedule of Unit Entitlements with NSW Land & Property Information, including any (costs) associated with the need for Orders by the Tribunal prior to that lodgement, and;

                3) Purchase the Common Property Storeroom from the O/C for an amount assessed by the (same) Registered Valuer who prepares the Revised Schedule of Unit Entitlements. 

                I’m inclined to think that your E/C and the O/C should just follow your “unfailingly reasonable and logical” approach, and not worry itself with the 20 years of un-adjusted Levies that the Owner of the extended Lot benefited from, or with the fact that he may well be getting everything or order prior to refinancing or placing the property on the market for sale; after all your O/C has itself been complicit in all that by not closing all the loops when its then E/C consented to the extensions.

                Hopefully the Owner of the extended Lot will accept this approach, but if not your O/C should still convene the General Meeting and put the E/C’s approach as an Agenda Item before all Owners (whom it should lobby in advance), and seek a Special Resolution in support of 1-3 (above), and implement that via an Order of the Tribunal.   

                #17101
                Paul2000
                Flatchatter
                Chat-starter

                  Thank you Whale for your detailed reply. (Easy to get things passed as there are only four owners and the 3 resident owners, the EC, all are in total agreement.

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