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We are recent owners of a 2 year old townhouse in a 5 townhouse development and I have recently discovered the owner of the townhouse at the front of the our complex has built a colourbond fence that encloses common property, effectively increasing their land area by 40 square metres.
From informal enquiries I have also discovered the fencing of our common property was not formally approved nor a by-law included to allow this land grab.
What can I do to reverse this situation; Ask the strata committee secretary to call a EAGM to discuss with members? Write to the unit owner asking them to explain illegal fencing of common property? Write to the new strata manager (original strata manager was dumped by offending owner before we bought) for them to coordinate a response and guide owners to NCAT resolution if necessary?
I would appreciate any feedback about this issue.
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It sounds very much like an illicit land grab and if so, the next questions are
1) what do you want the outcome to be and
2) how far are you prepared to go to achieve that outcome?Complain to the committee and/or strata manager? An EGM? Action at NCAT? Either of these could make an enemy for life of your neighbour but that’s not necessarily a good reason for not taking action.
Over to you.
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.
Does the land grab disadvantage any other residents? While common property, it is property that nobody else would or could have used?
My concern would be 1) that the area is unavailable to others for their use and enjoyment and 2) that the Owners Corporation is liable for anything on the common property that it has not been maintained and should have been maintained. What if there is something dangerous that can’t be seen behind the fence? What if the fence falls over on someone?
If nobody else wants to use the area, then a solution could be to pass a bylaw (Special Privilege Rule in ACT-speak) giving exclusive use of the area to the relevant unit owner on the condition that the owner of that unit at any time must undertake any necessary repair and maintenance within the area and of the fence. That permission could be granted subject to some one-off payment or an on-going annual amount.
If something was not done properly in the past, the situation can be rectified by doing it correctly now.
I guess I’ll throw a cat amongst the pigeons.
We purchased our apartment in 2010. When purchased it was already encircled by a fence but was classed common property. The Chairman of the committee told us we could do as we like as no one else could use it so we did. Huge birds of paradise were removed from the small space & we added pavers and gravel to make it easy to maintain & made it attractive.
We were asked recently if we wanted to make it an exclusive use area by the Strata Manager as we used a ‘photo’ of the area when it was advertised for rental last year. We asked the cost involved & what benefit it would be to us to make it exclusive use. Other than being able to advertise it with photos of the area, there was no other benefit. No further action has been sought since we emailed. Had we not tended the area it would be an overgrown jungle now with vermin etc taking over. What happens now? I’ve no idea but the tenant is enjoying the garden space!
What happens now? I’ve no idea but the tenant is enjoying the garden space!
Have a look at this court case over a purchaser being misled over problems in an apartment block. It didn’t help the vendor’s case that they had claimed fenced-off common property as their own. You’ll be fine as long as you don’t get into trouble over something else.
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.
Two things in our favour and a couple of observations:
- We did not put the fence up. the fence was erected by the builder at the time of the build. Builder subsequently went into receivership.
- We purchased the apartment ‘as it was’ and we were aware it was to be maintained as per common property. We maintained it as no one could get access to it other than going through our apartment and the Strata Manager was aware of that.
- It has now been 11 years and, had the area not been maintained by us, it would be overgrown and a danger to the complex due to vermin etc.
- If, in the future someone buying the unit wants to make the area ‘exclusive use’ we will certainly advise that that option is available to them
As the fence is on common property, the OC can decide to remove it. I would advise the OC to give the unit owner a choice between 1) having the area formally approved for their exclusive use subject to conditions about repair and maintenance of the fence and the enclosed area, or 2) the OC removing the fence so that the OC can have oversight of and access to the area that it is responsible to maintain in a safe condition.
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