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My building was strata titled in 1986. On this date, the strata plans were created showing 2 ground floor lots as having separate “covered balconies” with access directly on to common property external area, say Lot 1 and Lot 2.However, in reality, Lot 2’s covered balcony was closed-in to increase the internal area of the apartment (before this titling). The only access was via an entry door that required access through Lot 1’s covered balcony area and they had no other access to their apartment.Theoretically, every owner, tenant and visitor that require access to Lot 2 are technically trespassing on the property of Lot 1.I am the owner of Lot 1, and have tried to raise this issue with the strata company several times, and I’m told the previous owner also tried to rectify this issue, but ran into some problems.I also contacted the owner of Lot 2 to see if we could work out a solution by sharing the cost of relocating the entry door of Lot 2 back to the balcony area, thus restoring the proper use of the covered balcony area of Lot 1. However, this request was refused as the owner of Lot 2 insisted that Lot 1’s covered balcony was common property (which it obviously is not).The owner has recently passed away and I wish to raise the issue again with either Strata or the inherited owners.In addition to this, I have recently installed the bi-folds opening out to this area and it is a much bigger issue now having people walk across. It interrupts the peaceful enjoyment and invades my privacy.What rights do I have, considering it would be very difficult to deny access onto my property. Can I stop them “trespassing”? Can I force them to move the door? Can I request that strata rectify the issue? Can I issue a letter to either the strata or owners to get some action?
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@BondiG said:What rights do I have, considering it would be very difficult to deny access onto my property. Can I stop them “trespassing”? Can I force them to move the door? Can I request that strata rectify the issue? Can I issue a letter to either the strata or owners to get some action?Does your right to “peaceful enjoyment’ supersede their right to enter their apartment? I don’t think so, regardless of the detail of the strata plan.
The simplest way to remedy this is to renew the suggestion that you share the cost of moving the door with whoever has inherited the house.
If they are planning to sell and show any reluctance, tell them you are going to start lodging papers with Fair Trading and NCAT, seeking orders, that will make it very difficult for them to sell.
But hopefully they’ll see sense and it won’t come to that.
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.
Be sure of the common property boundaries. Have you: (1) had a surveyor look at the original plans; and (2) visit your site to clarify boundaries; and (3) make a written assessment of the situation?
If the original surveyor is still around perhaps they might be the best person to contact.
See here for another avenue that you could pursue to properly determine the boundary: https://rgdirections.lpi.nsw.gov.au/deposited_plans/boundary_definition/boundary_determination
The other important issue is: When (and how) was Lot 2’s balcony enclosed?
Did Lot 2 obtain approval to enclose their “covered balcony” which has denied themselves access and created this problem?
Enclosing a balcony usually involves both approval from the local council and the approval of the strata scheme. Are you able to check with council? or the Minutes of previous AGMs? Was the enclosure completed by licensed builders?
If Lot 2 have done something that has created their own problems then you should not have to suffer trespass or make good their mistakes.
You may need to clarify these issues. The more information that you can obtain that will help your case the stronger your argument will be.
If you are correct in your assessment of your Lot boundaries (and Lot 2 is not) then NCAT is the place to go. It is best to sort this matter out once and for all.
Certainty of Title and certainty of lot boundaries are essential and without them you may have difficulty selling your property, or claiming trespass, or anything else that you might want to do.
By all means talk to the inherited owner but be prepared to take this matter further if you need to.
The building document that you mentioned is not particularly relevant. The important document is the Strata Plan which should show all of the Lots and Lot boundaries, and the Common Property. Strata levies for Lots 1 and 2 would be based on the strata plan document and the floor plans.
Your strata manager should have a copy of the Strata Plans. Ask them for this document. If they don’t then you can obtain copies of the strata plans from one of the approved information brokers listed on the website of the Registrar General Directions NSW (see link):
In order to determine whether an item is common property you must inspect a copy of the registered strata plan and a current search of the common property title. Copies of the plan and searches of the common property title can be purchased through LPI’s approved information brokers.
If you believe that you need legal advice after you have obtained the Strata Plan and that the legal quote that you have obtained is too expensive then you may need to shop around for another strata lawyer quote.
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Here is a NSW govt document entitled Strata Plan Fast Facts that you might find useful in understanding the plans:
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0005/143078/Strata_Plans_Fast_Facts.pdf
I would not be offering to help pay to reinstate the door in Lot 2. If it is their mistake then they should pay.
From the information that you have provided it does appear that Lot 2 is accessing their Lot via your Lot (though I am not a surveyor).
Your cheapest option is to use the services of NCAT.
You could request two outcomes (1) that the Tribunal make an order to prohibit the residents or guests of Lot 2 from entering your lot to access their Lot, and (2) that the Tribunal make an order to have the door removed from the wall between your Lot 1 and Lot 2.
The relevant section in the Strata Schemes Management Act 2015 is Section 241: Tribunal may prohibit or direct taking of specific actions.
The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.
Before you go down this route you need to have first attempted a face to face mediation.
If you already have a history of face to face mediations about this issue that have not been successful, and you have a record of them, then you probably don’t need any more…you could apply to NCAT immediately. Perhaps talk to an NCAT advisor about this.
Your application for a ruling from NCAT should include answers to the following questions: What is the history behind this issue? Did any previous owner of your Lot give permission for this access to occur? Has anyone raised this issue before? What was the outcome?
Include Strata plans, photographs and as much information as you can.
Application form is here:
https://www.ncat.nsw.gov.au/Documents/ccd_form_community_schemes_tribunal_orders_application.pdf
It does seem like there was the possibility that both lot 1 and 2 were co-owned.
Tricky situation but you are handling it very well and rationally. Unfortunately, it seems you will need to get formal and step through to the outcome.
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