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implied exclusive use
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Peter Gray
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25/04/2018 - 11:34 am
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My downstairs ground level neighbour has been using a small garden area outside his living room sliding door as a patio for about 10 years without any authority. He has garden furniture, BBQ which stinks up my unit above, gas bottle and planter boxes there.

In the past I mentioned to our strata manager that I was unhappy with this but he did nothing. We’ve recently changed managers and I mentioned it to the new manager asking that the area be cleared as it is common property. The manager said that at a meeting of the owners corporation, my neighbour can be instructed to remove the items but I don’t think the majority will agree because our unit block of 9 is broken into 2 camps and I am in the minority camp.

The manager said that if the OC doesn’t agree then I could take the matter to mediation but that my neighbour has “implied exclusive use” and I would probably be unsuccessful. Is he right? Is there such a thing as implied exclusive use?

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JimmyT
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25/04/2018 - 12:48 pm
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This kind of question comes up from time to time and I have yet to come across an NCAT (or CTTT) ruling that would support the right of an individual lot owner to acquire common property without compensation to the strata scheme and agreement to maintain and repair it.

But is the owner actually exercising a right to exclusive use.  Or is he just using common property in a way that is permitted by by-laws.

The point I’m trying to make here is that it may not be the “land grab” that’s the problem but the behaviour of the land grabber.

So perhaps your appeal to the committee should be to stop the downstairs neighbour doing whatever it is that’s upsetting you, by looking at your scheme’s by-laws and then demanding that they enforce them.

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Peter Gray
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25/04/2018 - 1:15 pm
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Thanks for your reply.

I see your point. He uses it as a patio at all times of the day and night. The rest of us are unlikely to use it because it would mean sitting outside his living room door and door length windows.

My problem is that he leaves his belongings, as stated above, on the property.He’s never sought authority to do this. The area is right beside the main entry pathway and main entry door to my part of the block.

My concern is not only the BBQ odours but that the area would look better cleared in terms of the appearance of our building so as to present a neat entry way to my unit. I don’t and can’t object to him using common property but its mainly the fact that he leaves his furniture etc on the common property.

Our bylaws are the standard pre 1996 bylaws from the 1996 Act. What bylaws do you think I could  insist be enforced in this case?

Thanking you in anticipation. 

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Lady Penelope
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25/04/2018 - 1:44 pm
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Peter Gray – I agree with JT.

It appears that the ground floor occupant has placed items on the common that are not permanently installed, therefore it is unlikely that the ground floor occupant is claiming the area as their Exclusive Use. Also, there appears to have been no permanent barrier erected around the area that ‘excludes’ others from entry to this area.

The usage of an area, even on a continuing basis and for a long period of time, is not sufficient to acquire exclusive use rights.

Occupants are permitted to use Common Property. Whether they elect to make use of the Common Property or not is their own personal choice.

Unless there is a By-law restricting BBQs, BBQ smoke may drift from BBQs on balconies just as readily as it does from the Common Property lawn area.

You may have the benefit of a view being that you are on a higher floor, and the ground floor occupant has the benefit of easy access to the garden. C’est la vie!

If the occupant is creating excessive noise then you may be able to invoke the ‘noise’ by-law. Apart from that I don’t see that you have many other avenues of complaint. 

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Peter Gray
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25/04/2018 - 2:32 pm
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When you say permanently installed do you mean fixed to the ground?  The furniture items etc are left permanently on the common property. 

If that is not a problem then does that mean he or anybody can fill an area of common property with whatever they like so long as the items are not permanently installed/ fixed to the ground?

Thanks

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Lady Penelope
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25/04/2018 - 2:56 pm
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Peter Gray – If the furniture is able to be moved then it is not permanent.

The hypothetical scenario of “fill(ing) an area of common property with whatever they like” would possibly trigger an ‘obstruction’ By-law (if your scheme has such a By-law). Although, ‘obstruction’ By-laws generally pertain to walk ways, and paths etc. From what you have described, the downstairs occupant is currently not causing an ‘obstruction’.

Is the furniture located on the lawn and does the furniture need to be removed when the lawns are mowed? If the moving of the furniture is creating an additional cost to the Scheme for the grounds maintenance contractor then the Committee can either ask the occupant to remove it when the mowing occurs. 

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Peter Gray
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25/04/2018 - 3:09 pm
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I should clarify, the owner is not claiming exclusive use just using the area as if it was his personal patio.

I’m surprised at your previous post. The items are not creating an obstruction. I was under the impression that items could not be left permanently on the common property at all, obstruction or not. I realise we can all use the common property but to leave furniture there permanently I thought a no-no.

Some residents park their cars in the garage area in front of garages, not in marked parking space. So unless there is a specific By-law prohibiting this than its okay so long as there is no obstruction.

I’m flabbergasted!!

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JimmyT
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25/04/2018 - 3:45 pm
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Peter Gray said
I realise we can all use the common property but to leave furniture there permanently I thought a no-no … so unless there is a specific By-law prohibiting this than its okay so long as there is no obstruction.

Many schemes have by-laws about what you can and can’t do on common property.  If you have, as you say the default by-laws for pre-1996 properties, and they have not been changed or rescinded by special resolution, then you already have grounds for breaches to be issued.

You also have a by-law that says people shouldn’t park on common property without written approval (see below).

Getting back to the garden land-grab, the standard by-laws say “an owner or occupier of a lot must not obstruct lawful use of common property by any person.”

They also say: “An owner or occupier of a lot must not … use for his or her own purposes as a garden any portion of the common property.”

Couldn’t be clearer.  Unless the clauses below have been removed from your by-laws, the downstairs owner has been in breach for the past 10 years.  And  that doesn’t give them the right to continue to do so.

By the way, if your committee refuses to act, after two months of a written request, you can take THEM to NCAT, seeking orders to force them to issue a Notice To Comply … or you could just apply to Fair Trading for mediation with a view to seeking orders against the downstairs neighbour directly.

This is what the standard by-laws say (check yours – they may be different):

2 VEHICLES

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation.

Note : This by-law was previously by-law 13 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 14 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .

 

3 OBSTRUCTION OF COMMON PROPERTY

An owner or occupier of a lot must not obstruct lawful use of common property by any person.

Note : This by-law was previously by-law 14 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 15 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .

 

4 DAMAGE TO LAWNS AND PLANTS ON COMMON PROPERTY

An owner or occupier of a lot must not:

(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or

(b) use for his or her own purposes as a garden any portion of the common property.

Note : This by-law was previously by-law 15 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 16 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .

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Peter Gray
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25/04/2018 - 3:51 pm
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Thanks very much for your detailed reply. I’ll take it up again with the OC and new strata manager.

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Lady Penelope
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25/04/2018 - 5:20 pm
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Peter and JT – After reading various Tribunal decisions on this issue I respectfully disagree with your assessment that the issue is a clear breach.

The garden furniture is probably not causing an obstruction (this will depend upon how large the Common Property is). As I mentioned earlier, an obstruction pertains to designated roads, walk ways and access routes and would be unlikely to apply to a lawn area unless the total lawn area is very small.

The furniture is probably not causing any damage to the lawn, particularly so if it is move able. Damage must be provable.

Using the Common property for move able seating would be acceptable, and is quite different from using (or abusing) the Common property area as a garden bed into which plants are grown.

I don’t know what the planter boxes are made from but if they are move able wicker cane structures then the use of the Common Property ‘as a garden’ does not appear to be relevant as the occupant has not planted any plants in the natural soil, nor have they planted a garden. 

The situation would be different if the planter boxes were constructed of sleepers or koppers logs etc. In that case the occupant may be in breach of By-law 4 as the planter boxes would be permanent and are not move able.

All that being said, the occupant could formalise this issue by applying to the Owner’s Corporation for a license or a lease to use the Common Property immediately adjacent to their sliding doors.

A lease and a license are different.

A lease runs with the land (remains with the unit) and can be transferred to a new owner whereas a licence remains with a unit owner. If there is change of ownership of a unit with a licence, a new licence must be issued and approved for the new owner.

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 112

Owners corporation may grant licence to use common property

112 Owners corporation may grant licence to use common property

 

(1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution.

(2) A licence may be granted subject to terms and conditions.

Note : Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.

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JimmyT
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25/04/2018 - 5:42 pm
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Lady P

I accept your point about obstruction.  I just gathered that up as it was between the by-laws on parking and lawns.

I was more focussed on By-law 4(b) of the revised standard by-laws, compulsory for pre-1996 schemes which says:  “An owner or occupier of a lot must not … use for his or her own purposes as a garden any portion of the common property.”

Isn’t that precisely what’s going on here? I suppose it depends on your definition of “garden”. Is it somewhere that you plant vegetables or flowers – or is it an enclosed or defined area where you lie on the grass and sunbathe?

Regarding the planters, I took them (possibly wrongly) to be large and hard to move – the common concrete or deep plastic type.  Perhaps Peter can enlighten us. But judging by previous instances of this kind of thing that I have come across, the lot owner could be using them to define the area of his land grab.

Your earlier comments about access to the common property lawn outside his French windows being compensation for not having the views of higher apartments is sympathetic but I’m sure it wasn’t intended.  If the lawn area was supposed to be annexed in this way, he should be paying higher levies. 

Perhaps he is but in this kind of situation, normally the lower flats in a building attract lower levies because they don’t have the view (or use the lifts, for that matter).  Common property is there for everyone, to look at, if not to walk across or roll around on.

It’s certainly not free land that can be annexed for the exclusive use of one owner – enhancing their property value –  unless, as you rightly point out, they get a special resolution passed and compensate the other owners in the building.

By the way, a friend has just been given exclusive use of a small area near her apartment on a 25-year lease.  It’s a neat way of allowing for a logical expansion of her territory into part of common property that no one else can get to anyway, while compensating the Owners Corp without needing to redraft the unit entitlements. 

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scotlandx
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25/04/2018 - 9:09 pm
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I don’t see why it is acceptable for an owner to permanently store/keep items on the common property. The area on which they have placed the items is not part of their lot. That is appropriation of the common property for their own use and benefit. 

We have had similar issues and made it clear that residents cannot place anything on the common propert without permission. That includes things such as barbecues and pot plants.

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Costa
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02/05/2018 - 4:46 pm
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As an owner-resident in a Sydney strata of 32 apartments for 20 years plus now, I reckon I’ve seen just about everything when it comes to dodgy behaviour.

I find Lady Penelope’s laissez fair approach, backed up by technical tribunal decisions, most disturbing.

Any efforts, however subtle, to snavel Common Property by stealth such as is obviously occurring at Peter Gray’s strata should be nipped in the bud fast, especially if it is mucking up the place. If the Strata Manager won’t act and the Strata Committee won’t act, grab the stuff yourself in the dead of night and spirit it away somewhere. Neighbour should get the message.

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Sir Humphrey
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02/05/2018 - 5:18 pm
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Where I live, there are bits of common property that nobody but the owners of the adjacent unit is ever likely to use or want to use. We have a written policy from decades ago that unit owners are encouraged to look after the plants in these areas and blend the planting and landscaping of these areas into their own area so as to avoid the appearance of hard boundaries. Unit owners are not permitted to erect a fence that would prevent access to these area. Fences are not encouraged but they are permitted. If you want a fence it must be not extend beyond the actual unit area boundary. This arrangement has worked pretty well. 

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Costa
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03/05/2018 - 4:50 pm
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Sir Humphrey, in reference to the fences you mention: “If you want a fence it must be not [sic] extend beyond the actual unit area boundary.” It sounds like said fence would NOT be on Common Property and so OK.

Having said that, your approach in OUR strata wouldn’t work. The land grabbers would push and push the envelope until the ugly phrase from Peter Gray’s original post became applicable: “implied exclusive use”.

Common Property, wherever it is, is there for the benefit of everyone and serves to add aesthetics and space etc. even if it is ‘adjacent to a unit’ and ‘nobody else is ever likely to want to use it’. 

I’ll never forget hearing a noise in the middle of the night and looking down from three floors up to see our hippy dippy ground floor neighbour starkers on a bare mattress, dragged onto the Common Property lawn surrounded by candles. It was a hot night. 

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