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Hey all we purchased an apartment in a block of 4 in 2012 which had a converted attic (done in 2003). The block was self managed at the time. Each owner had given their written approval for the previous owners to convert it which we have possession of. 2 of these 3 owners are still here. No money changed hands. No exchange was made. No evidence of contention or attempted negotiation. The other top floor apartment is not converted and they have no intention to do so. I know the trend is to purchase the attic space these days but this is 20 years ago now. Last year, we did add a staircase as the previous access (a steel ladder that was fixed not pull down) was incredibly dangerous for adults and children alike. The addition of the staircase was included in an approved bylaw related to other renovations we undertook.
There is no bylaw. Our conveyancer did not pick this up. This was our first purchase so a big learning for us we wouldnt have even thought to ask given we had the written permission. Buyer beware yada yada yada. Too late now.
Flash forward to 2022 and a few weeks ago the bottom 2 apartments put forward an agenda item at the AGM that use of the attic space for the top 2 apartments be allowed, in exchange for the bottom apartments having exclusive use of the common gardens. To say the least, it is an opportunistic and mean spirited move but I recognise it is legitimate given the lack of bylaw. This was voted down by the top 2 apartments.
Our strata managers have proposed we put forward a bylaw for the conversion retrospectively. But it will be voted down 2:2 because the bottom apartments want a free garden in exchange for it. This is not our forever home in fact we intended to sell in the next year or 2.
The attic is worth less than the garden so its not an option to exchange it and nor would we as we have young children.
What can be done to address this so that we can sell the property with no strings attached? Is there any precedent that allows us to obtain a bylaw using the written permission already provided?
- This topic was modified 1 year, 11 months ago by .
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I have to say first up that this is complicated (obviously) and there may be issues of objections being “timed out”. I’ll leave comments on that to those with legal qualifications.
However, here is a principle related to attic conversions (and other acquisitions of common property) suggesting that the owners acquiring common property pay the strata scheme the difference between the value of the enhanced property and the original property, minus the cost of the enhancement.
This would normally apply to the people who want the gardens to be their private property. If the loft conversion hasn’t been timed out, i.e. its legal status is still in doubt, then it is in the interest of the owners to get it established via a by-law otherwise the loft area is still common property, with all the potential conflict that might arise.
In fact, the downstairs neighbours might push the issue just to force the attic owners to come to the table and negotiate.
In any case, I think you need to separate the issues. The people on the ground floor need to buy the garden from the strata scheme – and that will require a 75 per cent vote in favour – and the people in the loft may or may not need to do the same for their conversion.
If no one has a definitive answer – and I would suggest the ground floor owners and the attic conversion owners choose a mutually acceptable strata or property lawyer to provide the advice – then your strata scheme could maybe take it to NCAT as an uncontested issue, seeking a ruling on who owns what.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
- This reply was modified 1 year, 11 months ago by .
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