14/03/2019 at 2:23 pm #36379
I live on the ground floor of a building, and I have a courtyard. The strata/OC is sending me breaches of by-laws because of an outdoor dining/pool table that I have along with a storage cupboard used to store sporting equipment. These items are not visible from any balconies above the unit as there is a ceiling from the above unit that covers that part of the courtyard. There is a 2m high hedge along the fence so the inside of the courtyard is only visible from a small gate if you walk past.
They are arguing that you can see my courtyard from the apartments across my building (across the road, closest balcony at least 30m away.
I have made a point that if I do not have storage for my sporting equipment then the courtyard would be more of a mess, and I should not have to remove a piece of furniture/s if it is specifically for outdoor use.
p.s. they could only see the storage cabinet because they climbed over my hedge and took a photo of the inside of my courtyard!
My point is, if I am the person allowed to use the courtyard as it is part of my lot, when can I tell them to zip it in regards to items I place in my courtyard? the by-laws state it is common property, yet it is part of my lot!
They are also telling me to remove a lock I have put on the gate although the bylaw clearly states I can make any additions I find necessary for the safety and security of the unit.
I’ve tried to google the definition of common property and the lot, however all I find is that common property is the external areas of a courtyard ie fence, tiling, wall etc. Nothing about items I can hold/store in my courtyard.
Would really appreciate your help!
14/03/2019 at 2:27 pm #36382
- This topic was modified 2 months, 1 week ago by Jimmy-T.
You could ask the managing agent for a copy of the strata plan, which should clarify what is part of the lot and what is common property.
Even if the courtyard is common property, there might be a by-law or other resolution that grants exclusive use of the courtyard to the owner of your lot. That grant of exclusive use (in the ACT it would be called a ‘special privilege’) might have conditions attached.14/03/2019 at 3:12 pm #36386
I lived in units similar to the one you described in that case the courtyards were not accessible by other owners. I thought that a courtyards like the one you describe would have been ‘exclusive use’ even if common property.
Doesn’t the dispute then come down to whether they are a nuisance visually or otherwise?
I have no idea and would defer to any other authority.14/03/2019 at 5:48 pm #36388
It will be in the by-laws … or not! If there is a by-law stating what you may or may not have on your terrace then that is the only basis on which you can be “breached”. Your notices to comply should state the terms of the by-law that you are alleged to have breached.
If they don’t have a by-law, tell them to leave you alone. If they do have a by-law, but its terms are being over-reached, let them take you to NCAT for fines and then challenge it there.
Either way, if the situation is as you say, tell them to do this through proper channels or leave you alone
15/03/2019 at 12:03 pm #36403
- This reply was modified 2 months ago by Jimmy-T.
First of all I would check whether your courtyard is on your Title and/or whether it is has been granted to you as Exclusive Use, or as a Special Privilege e.g. a lease etc. You should have been made aware of this when you purchased your Lot.
An Exclusive Use By-Law gives the lot the right to exclusive use and enjoyment of specified parts of the common property. ie – The lot is allowed to exclusively use the courtyard. That would mean the whole of the specified part.
Then check the Exclusive Use By-law for any conditions being imposed upon you within that By-law.
If all looks OK then if I was in your shoes I would wait until the OC took you to NCAT rather than the other way around. This will ‘test their mettle’.
The onus will then be on the OC to prove that you have breached something, rather than on you having to prove that you haven’t.
From your comment is could be that the OC are relying on the ‘appearance of a Lot’ provision – but could be taking this to the extreme (i.e. not acting in accordance with what is just or reasonable), given the situation that you have outlined.
If you wait for the OC to make the move first then (a) you save money, and (b) you get to know their reasons and some of them will probably be ‘loopy’, and (c) they do most of the hard work in establishing their case against you, and (d) you can then argue the OC are acting in a harsh, unconscionable or oppressive manner.
Section 139 (1) states:
“By-laws cannot be unjust. A by-law must not be harsh, unconscionable or oppressive.”
The Macquarie Dictionary (Fourth Ed) gives the following definitions:
- harsh adjective 1. Ungentle and unpleasant in action or effect: harsh treatment. 2. Rough to the touch or to any of the senses: a hard surface; a harsh voice. 3. Jarring upon the aesthetic senses; inartistic: his painting was full of harsh lines or clashing colours.
- oppressive adjective 1. Burdensome, unjustly harsh, or tyrannical, as a king, taxes, measures, etc. 2. Causing discomfort because uncomfortably great, intense, elaborate, etc.: oppressive heat. 3. distressing or grievous, as sorrows.
- unconscionable adjective 1. Unreasonably excessive. 2. Not in accordance with what is just or reasonable: unconscionable behaviour 3. Not guided by conscience; unscrupulous.
In the meantime, write the OC Committee an email stating that you do not believe that you are in breach of any by-laws and that you will continue to maintain the status quo, including retaining the lock on the gate, until proven otherwise.
Also advise the OC that you will deem any unauthorised access to your Exclusive Use Area (unless in a genuine emergency) to be a Trespass and that should the OC wish to enter your Lot or take photographs of your Lot from within your Lot boundary that they must first seek your permission to do so.16/03/2019 at 9:41 am #36424
It may also defuse the situation if you join the strata committee. There may be a less confrontational way to influence the position of the owners corporation instead of it appearing to be owners corporation vs single owner.18/03/2019 at 10:14 am #36440
You guys are all the best! I really appreciate all your help!! Very very useful!