Are residents who commandeer visitor spaces and annex chunks of common property for their own use really thieves?
In a world where breaking the law and flouting regulations is not only accepted but encouraged and celebrated – you just call it “disruptive” – infractions of the rules in strata living often seem like small potatoes.
Residents parking on designated visitor spots is probably the most common, and that can range in seriousness from using a space near the lifts while you unload your shopping, to tradies filling their garages with their gear then permanently and aggressively commandeering a visitor space.
However, there are other breaches that may seem quite reasonable but are in fact significant land-grabs that benefit individuals or a minority of strata owners at the expense of everyone else.
Small apartment blocks and townhouse schemes often have an area of common property around them at ground level which is meant to be shared by everyone but is a tempting morsel of real estate for those living immediately adjacent to it.
Given that we are only now, as a society, getting our heads around the concept of common property, it’s no surprise that many such land-grabs have been unchallenged for years.
I recall a case in the CTTT – the body that became NSW Civil Administration Tribunal – where someone had extended a lounge window downwards to accommodate a door, built a step on to the common property lawn and annexed the area next to his flat with fences, on the grounds that no one else was using it.
Incredibly, a Tribunal adjudicator supported the land-grabber because it had been that way for years and only new arrivals in the building had challenged it. The breaches of planning regulations and strata law, including smashing through a common property wall, cut no mustard.
Only recently, the Flat Chat Forum fielded a question from a resident in a small block of flats whose downstairs neighbour had blocked off an area of the common property lawn with concrete planters, and installed sun loungers and a barbecue.
The ensuing online debate was almost as heated as the discussions in the scheme concerned, but it all came down to one simple issue – does any owner have the right to take possession of any piece of common property simply because it is immediately adjacent to their lot and no one else “uses” it?
I put the word “uses” in quotes because surely one of the uses of a lawn around a block of flats is that it provides a pleasant outlook for the people inside the units.
Getting back to the question, legally the answer is no. If you extend your exclusive use of your “lot” into an area that is designated as common property, you have stolen something from everyone else and enhanced the value of your own lot.
This also applies to people who extend upwards from their top floor flat into their common property roof space. It’s such a common occurrence that the High Court established a formula for the minimum compensation that the other owners should receive (the value of the extended property minus its original value and the costs of the renovation).
And, to be fair, if the local council thought that individual gardens were a better idea that a common open area, that’s what the planning approval would have included.
In short, whether its grabbing a slice of garden, building another bedroom in the loft or just taking over a parking spot – unless you get the appropriate permission and pay a reasonable amount in compensation, you are stealing from your neighbours.