Flat Chat Strata Forum Common Property Current Page

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  • #8362
    bigtt
    Flatchatter

      I read in a book that if no by-law names the owners corporation or lot owner financially responsible for maintaining common property, then the dispute is to be solved by an adjudicator. Does that sound right?

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    • #16406
      Whale
      Flatchatter

        I assume that your post relates to the Topic (i.e the tree).

        That being the case, if the tree is above the stratum of the Lot (as shown on the Strata Plan) then its removal is the responsibility of the Owners Corporation; exclusive use or not.

        Conversely, if it’s entirely lower than the stratum of the Lot, then it’s the responsibility of the Lot Owner.

        There’s no need for an adjudicator unless there’s some disagreement about that responsibility. 

        #16407
        scotlandx
        Strataguru

          No that’s not correct.  If there is no by-law (exclusive use) then by default the Owners Corporation is responsible, refer sections 62 and 54.  The reference you are looking at may be to the note to section 62 which provides that a decision under s 62(3) can be reviewed by an adjudicator.

           

          https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s54.html

           

          https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s62.html

          #16410
          Whale
          Flatchatter

            Lesson for Whale: to avoid confusion and contradictory replies, clarify first – like is there an Exclusive Use By-Law in place? In this instance, as “bigtt” said (in the topic) that there is exclusive use, my post was on the assumption that there was a By-Law in place covering that (?).

            If there isn’t, then “Scotlandx” is right by stating that the Owners Corporation (O/C) is responsible for all maintenance and repairs to the area, notwithstanding any exclusive use by a Lot Owner/s.

            If an Exclusive Use By-Law is in place, then it’s customary for a Clause to be incorporated that defines who is responsible for maintenance and repairs within the exclusive use area – and that’s generally the beneficiary of the exclusive use. If there’s no such Clause, then again the O/C is responsible by default.

            Whatever the scenario, I stand by my assertion that a Lot Owner cannot be held responsible for maintaining areas / items that are outside the stratum of their Lot.

            #16418
            bigtt
            Flatchatter
            Chat-starter

              There is a by-law in place stating maintenance is the Lot owner’s responsibility. However it’s a large tree and was planted long before it became exclusive use. I can’t find the height of the stratum on the strata plan.

              #16423
              Whale
              Flatchatter

                The “stratum statement” is generally shown on the page of the Strata Plan where the Plan of the Lots (floor plan) is shown, and it’s typically (but not always) 2.5m above and 1m below some fixed / permanent feature of the development; like a concrete driveway or the floor of a couryard.

                You could contact Land & Property Information (in NSW) and ask them to check the Strata Plan for you; their website is https://www.lpi.nsw.gov.au/

                The fact that the tree was on the exclusive-use area before Registration of the Special By-Law is of no legal consequence, but as I said in my earlier posts the height of the tree is.

                As you say, the tree is “large”, so let’s assume (without clarification Smile) that it’s above the stratum of the Lot, where in those circumstances removal of it is the responsibility of the Owners Corporation after it has checked the requirements of Council under its Tree Preservation Orders.

                I’m big on compromise in circumstances such as these, so why not have your Owners Corporation (O/C) approach the Lot Owner/s who benefit from the exclusive use of the area for a contribution?

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