missfeather

Thank you to everyone who kindly took time and effort to respond to my posts.  I realise they were verbose and often pointless.  I was very upset.  I’m sorry if I caused any frustrations.  I’ve since come to terms with the fact a fence will need to go where the EUA boundary is (we have to pay more than half because we need a fire exit gate which she disagrees is necessary).  We did not have money to engage a Strata lawyer.  I sought free legal advise from a community centre.  I am curious to know how much the area is worth just for argument’s sake, if she were ever of a mind to sell it to us.  A property valuer costs nearly $1000, we don’t have this money.  Anyway, thank you.

“If a motion was submitted and did not pass, you could potentially challenge that decision if you were able to assert that the opposition of your neighbour to the motion was unreasonable in the circumstances.”

To all:

I am trying to develop a series of grounds to assert that the opposition to the motion (that the CMS be amended to reflect current structures and redraw the Exclusive Use plan) be unreasonable in the circumstances.  (The CMS hasn’t been amended since 2000.  It is 2018 and a great many changes have taken place throughout the property, many fences, etc.)  

It’s hard as I’m sure anyone could argue that her opposition is perfectly reasonable because it’s her “exclusive use” area.  But surely there are grounds to be considered “in the circumstances”.  Otherwise, why have that clause at all?

“Reasonableness is decided objectively, based on the circumstances.” – According to a BCCM Adjudicator.

In these circumstances, there are a many reasons her reclaiming the area will have significant impact on us.  There are many reasons as to the manner in which the problem came to exist that have made it reasonable in the circumstances that we are occupying the area.  The fact that the BCorp Manager kept the issue from us until it was too late to do anything about it.  There are a dozen reasons.  Surely these amount to something “in the circumstances”?  

Does anyone have any strong examples of what has been considered “in the circumstances” that we could use in our argument?

We would also request for some restrictions to her intended works such as her affixing her fence to our building and occupying the area directly adjacent to our ENTIRE living area (where we spend all of our waking hours).  To limit that impact her modifications would have on our enjoyment of our Lot.  Surely there area restrictions as to what a Lot owner can do on Common Property anyway.  She seems to think she can start building the Taj Mahal if she wants, with complete impunity.

The basic rule governing an owner’s use of common property is contained in section 167 which prohibits an owner from using, or permitting another from using, their lot or the common property in such a way that it interferes unreasonably with another’s use or enjoyment of their lot or the common property.  There is a general requirement that an occupier must not use or permit the use of a lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other occupiers (Act, 167). For example, if an occupier of one lot was to sit on the common property immediately in front of another occupier’s doors or windows then that may amount to unreasonable interference with the second occupier’s enjoyment of their own lot and it would be no excuse for the first person to say they were acting within their rights by using common property for their own benefit.

Any more thoughts?

Thanks guys 🙂

@Lady Penelope said:
missfeather – Have you asked your neighbour whether you may buy the portion of their exclusive use area? It may be worth considering, particularly if you make it an attractive sum of money

Yes, the first thing I did was offer her money for the area and ask if we could use some of the area (as it is of significant practical use to us in a multitude of ways).  She has absolutely no interest in money and zero intent to allow us any use whatsoever of the area, even as a safety route from our rear door if there were a fire.  She wasn’t even going to tell us about this issue or her plans for construction – she was just going to go ahead and begin works without ever approaching us. We found out by gossip just days before she intended to start works (only days before Xmas).  She has demonstrated she has absolutely zero regard for us.

@JimmyT said:
Qld strata law is definitely NOT my area of expertise but you will find more about the workings of a committee HERE.

It does sound like this person is a bully and a potential pain – with that in view, don’t hesitate to assert YOUR rights, because she certainly doesn’t have any problem pushing hers.  There is nothing sneaky or underhand about wanting to be on the committee and even if your neighbour gets on, the committee can’t pass by-laws or anything significant like that.  Thathas to be done at a general meeting.

I would get yourself acquainted as soon as possible with Body Corporate processes (and you can start by going HERE) and I certainly wouldn’t start by having a go at the strata manager.  He or she could prove your most powerful ally  

I am preparing information for Strata/Property lawyer to advise.  Thanks for the links to BCCM site – it is a valuable resource.  

Yes, she is a bully.  We will not lie down and take it.  We have rights and we would like the situation to be assessed by an Adjudicator who’s final decision I can respect.  

Making and removing an Exclusive Use By-Law must be done by a GM without dissent.  The reallocation of EUA can be done by owners via written agreement.  (It sucks because this would have taken place between us and the previous owner, had we had the chance to do so.)  

You are right about putting anyone offside.  It’s a really delicate situation.

@scotlandx said:
I’m not sure how you will go on retrospective approval. The new owner bought the property with certain rights attaching to it, so query whether those rights can be displaced. As a preliminary, it is unlikely the Committee has any powers in relation to those rights, specifically I don’t think they have the power to change them. 

In relation to the manager, they didn’t have any duty to advise you. It is not that I am not sympathetic, but you should focus on reaching a resolution with the neighbour.   

The angle I’m taking here is that the area in question remains Common Property over which the BCCom makes decisions in the interests of the BC (all owners).  They have the power to approve and disapprove regardless of whether the area is for Exclusive Use.  Technically, they can approve any structure and they can disapprove of any activities to remove or install any structures on Common Property (including for Exclusive Use).  

While we will endeavour to go through the motions of a “chat” with the Committee and the owner, and even engage Mediation and Conciliation from BCCM, I doubt she will budge.  The manner in which she has gone about claiming this area and complete and utter disregard for us has demonstrated she is hardly willing to negotiate/reason or compromise.  But we will try.

@scotlandx said:
Charming. Are you sure you want to live next door to such a delightful person?

What you could have done with owner B is irrelevant now.

Jimmy’s right, get a lawyer as quickly as possible, and get an interim order.  

Thanks for your reply scotlandx.

Yes, she is charming indeed.  We hear her ranting and raving all the way from the other side of our house.  But we love our home, it is in a beautiful bush setting and was a unique find.  It would be very hard to leave but now feeling very invaded by this unreasonable person.  Anyway.

It seems so unjust that our BC Manager didn’t bring this to our attention as BC Members way back in October.  Surely that’s a breach of conduct?

We will continue to prepare our application to BCCM for interim order and final orders by Adjudicator.  Not sure exactly what grounds we have though.  I guess that’s what a Strata Lawyer could advise.