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Hi,
I could really use some advice.
Earlier this year I purchased a apartment in a block in 6, the apartment was at some point a house that was then converted into 6 units back in the 70s or 80s. The block is self managed and the record are not great. My unit is on the top floor and has access to the attic space above my unit (no other access to it) which the previous owner used for storage and I have been using for storage too, the access is had from a pull down staircase. There has been some modifications done to the unit at some point I am assuming because there are sky lights coming through the attic into the the living room and kitchen.
My question is who own this space? I would love to renovate it to make it habitable, but it does not show up in any records I could see, so i am not sure if it is just common property, exclusive use common property or is it my property?
Any help would be greatly appreciated.
Thanks.
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Dear JB
My view is that, without any evidence to the contrary, you will find that the roof space is Common Property. If the previous owner had been granted exclusive use of the space by the Owners Corporation then this would have needed to have been approved as such and recorded in the minutes. Maybe you could enquire from the Secretary of the Owners Corporation as to the history of the “enhancement”.
It may well be that the previous owner carried out this work without any approval and as such you should be careful as to how you use the space. If there is power to the area you should be careful in case the work was not carried out by a licensed electrician and the area may be highly dangerous. If you intend to use the area for storage I would get an electrician to check the wiring. Apart from all that I would be careful of liability issues as if damage is done to the common property you might be personally liable to the Owners Corporation. It doesn’t sound like a good idea to make this “habitable” and I guess you mean for it to be suitable for people to live in your roof space (!).
Hope this is of some assistance.
Paul gives some good advice in his reply. Basically, unless this level (or stratum) is shown on the strata plan, then it is common property. By default any area within the boundaries of your strata plan not shown as part of a lot is common property.
At some time in the past exclusive use of part of the common property could have been granted, but to take effect this would have required a special resolution at a general meeting, followed by registration of a bylaw. If a bylaw for the roof space had been registered in the past you can readily request a search of your strata records at the Land and Property Information office.
Apart from the Strata issues mentioned by Paul, you could also run into trouble from the council if you modify the roof space for habitation without obtaining development consent.
DaveB
Here is a further question to ponder – assuming that the Owners Corporation did not know of the attic modifications at the time that they were carried out, and only discovered the work at a later time, does the Owners Corporation have any potential liability if a person is injured whilst in either climbing up a ladder to the ceiling space or whilst in the (common property) space?
In the event of damage to a person or the ceiling would the insurer have any grounds for refusing to settle if they discovered that the modifications had not been approved?
Any thoughts anyone on the post below?
bearing in mind that the Owners Corp has responsibility for common property without limitiation, if they bacame aware that there was a potentially dangerous situation created by unauthorised changes to CP, they would be negligent not to do something about that.
And even if they weren’t aware, it could be argued that they had some responsibility but, really, it would fall back on the person who made the changes.
But I don’t think an Owners Corp could, for instance, lock a door because someone might bump their head walking through it. They could, however, deny access to a stairway built on common property if the stairs themselves were demonstrably unsafe.
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 is not legal advice, but we have had a similar issue, and this is the way it works.
If an owners corporation becomes aware that an owner is using either their lot or part of the common property in breach of regulations, or in an illegal way, or in an unauthorised way, they are then on notice that this is the case.
The question then is whether the OC has a duty to tell the owner not to do it, or take steps to prevent them doing it. This will depend on the circumstances.
In your case, if the OC is aware that there are unapproved modifications affecting the common property that may be a safety risk, and may in fact compromise the safety and/or integrity of the building, then they should take steps to rectify the situation. This may include requiring the owner of relevant lot to reinstate the common property. If they do not, they may be liable (and refer below re insurance).
As regards insurance – as a general rule, where the OC is aware of something like this, it can void their insurance either in whole or in part. A contract of insurance is uberrimae fidei – a contract of utmost good faith. Anything pertinent to that contract must be disclosed. Where the OC becomes aware, they have to disclose it because it is relevant to the contract. If the OC were sued for an injury resulting from the modifications, the insurance company could refuse to pay and then the owners would be personally liable.
If there were an exclusive use grant made to a former owner of the unit to use the attic space, it would be worth checking some details even so. In the ACT, a ‘special privilege’ for exclusive use of an area of common property can only be made to a unit owner. Unless it is carefully worded, it is only to the particular named unit owner at the time. When our OC granted special privileges over parking spaces on common property, our legal advice was to grant the spaces to ‘the owner of unit X for the time being’ so that it would, in effect, be linked to the unit as it changed hands. Note, the phrase ‘for the time being’ got us into trouble because some owners refused to accept the legal advice that it meant ‘at any time’, the opposite of the colloquial meaning, ‘temporary’. In the end we had to change it to ‘at any time’ just to get the motion passed.
It is not advisable to renovate at your own expense a property that is not confirmed yet to be yours since you do not see it in the initial agreement with the management. The only way out to find out is to seek their advise and have a confirmation in black and white before proceeding with any works at all. You wouldn’t want to spend a hefty sum than be told later on to remove all the aftermath. Everybody welcomes that extra storage space but better to be safe than sorry.
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