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We have an owner who has practically tricked everyone (even the CTTT) and enclosed a part of the common property with a fence. He has direct access to the area from a gate he has inserted in his balcony fence.
Now he takes a chair and sits out – it is so obvious that he is making this area his own. Can anything be done about it? Is it legal to take your chair and sit there? What restrictions apply to the use of common property?
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So the CTTT said the fence should stay? Because I would think the fence (if built without permission) would be the issue that could be rectified (by removing the fence).
Aside from that (if the fence was approved, or if the CTTT said it has to stay), as far as I know anyone can enjoy the common property (i.e. by sitting on it) as long as it doesn't interfere with other users enjoying it. I.e. if he was using that area to make a lot of noise would be different to sitting quietly minding his own business.
And is he leaving the chair out there, or taking it with him? Because if he was leaving an item unattended on common property which technically (forgetting about the fence) could cause a hazard if someone tripped over it in the dark, I would think that changes the issue again than if he's only taking his chair out when he wants to sit and relax (hopefully not causing a hazard).
Clearly I'm no help, just find it an interesting situation…
Don't you need permission to put up a fence from council? We had an owner who tried to build a retaining wall around common property (without permission from anyone). Investigations found that the wall that this owner was proposing needed council approval (let alone strata).
If this fence is left to stand without approval or exclusive use by law then the strata would be responsible for it should it fall into disrepair, or fall onto someone!
bpositive said:
Haha. When I complained to mediation – they quickly held a EGM got approval from the exec committee and passed a special resolution. No s31, no bylaws, no consent. If you have the majority you can do anything! As matters stand even today there are no bylaws. Additions by owners to common property have to be first approved. Not the other way round. That is the law. But CTTT decided thru adjudication and hearing that the fence stays for practical reasons. It is now a safety fence – what a joke!
If it was approved by a majority at an EGM, I guess there is really nothing you can do, as majority rules as you suggested.
I wonder if it's possible to resolve at a future AGM / EGM to take down the fence if the majority switches in favour of this, but I have no idea if it's that simple (I assume the resident with the fence would take it to the CTTT if a future resolution went the other way).
My suspicion is that you'd at least need the majority at a future AGM / EGM for a motion on this, plus if it seemed like you could get this, I would think you'd need some legal advice as well. Not a good situation anyway.
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