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I’m an owner of a ground floor apartment in a block of 4 strata units in Sydney. Lot entitlements are equal.
I was about to sell my unit when the Lot 4 owner made claims about works not being approved and demanding I remove the works (fence and gate). The owner also demanded I lodge a development application with the Owners Corporation contemplating access to “Lot 1 Excusive Use Area from the Lot 1 enclosed balcony” (I had proposed access from my lounge room, and he had indicatively approved three times) .
I am now delayed and running up significant costs with prepared marketing of the unit and lawyer and strata lawyer so am hoping for advice to aid me.
In 2013 three special bylaws were approved (one owner was against each special by-law) then registered. There has not been a change to owners since then.
Lot 1 (myself) and Lot 2 (my neighbour) were granted exclusive use of an unused strip of land running down the side of our apartments. Our land slopes- so my unit is on ground floor, and my neighbour’s is above ground and has a balcony. Our building has 2 street frontages.
The bylaw stated a “right of exclusive use and enjoyment of the common property…, a special privilege in respect of the Area to undertake such alterations and additions as are required to permit the effective and proper use of the Area for a use proposed by the Lot owner”.
In 2014 the owner of Lot 2 circulated plans by email. The plans included installing a dividing fence between Lot one and Lot two, installing fencing to separate the garbage area running alongside her exclusive use area, installing a gate to access the area from common property and installing a staircase to access the exclusive use area from her balcony.
We approved this by email and the works were completed. NB. I now know this is not the correct way of obtaining approval. The above works are not registered on the plans when I review the contract of sale- only the original bylaw.
In 2014 I also circulated drawings to request a change from windows to sliding doors from my loungeroom so I could access the exclusive use area and install fencing with a gate to the common area. Lot 4 responded no objections. Lot 2 required amendments and approved in 2015, again with Lot 4 re-approving.
In 2020 I followed Lot 2’s action and emailed Lot owners requesting approval to install a fence and gate to separate my exclusive area from common property. I provided details of material (same as Lot 2) and referenced the gate.
The Lot owner who is now stating the fence and gate is not approved and materials are not of a high enough standard responded in 2020:
My understanding is that so long as you erect the fence within the boundary of your exclusive use area you do not need a further Owner’s Corporation approval. The Owners Corporation has already given approval to you by virtue of passing the exclusive use by-law special resolution.
In any event, if you think you still need it, you now have my mother’s approval as owner of Lot 4, to your proposal.
My neighbour in Lot 2 agreed with the above statement and also emailed approval.
I proceeded with the erection of the fence based on the above. It was erected by a franchise owner of an Australia wide group.
At our 2021 AGM general maintenance minutes stated for me to paint the fence the same as the building- this was done.
In 2020 I again circulated drawings for doors from my loungeroom to the exclusive use area- Lot 2 and Lot 4 approved again.
NB. Lot 3 do not generally respond and are the only investors.
I now realise the email approval process is not valid. However, it was in good faith and followed Lot 2’s approach. I cannot market my unit with this dispute and am trying to rectify. The strata lawyer states I need to prepare additional bylaws and convene a general meeting. The intro letter will reference that the Owners Corporation cannot withhold consent unreasonably and if the Body Corporate withhold consent/approval we will then go to NCAT.
Help I need:
Advice on how to achieve a good outcome and minimise costs so I can list my unit for sale and then leave Sydney and move to Melbourne with family, thanks
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My understanding is that so long as you erect the fence within the boundary of your exclusive use area you do not need a further Owner’s Corporation approval.
Not strictly true. There are provisions in the act related to the appearance of the scheme being changed and the effect on common property of any attachment to it (for instance).
The simplest way to resolve these issues may be to create a by-law passing responsibility for the changes to the owners of the lot henceforth, and in the current rush to get the property on the market it may be wise to compromise so that the deal can be done. If the objecting neighbour contines to block approval, then you can seek orders at NCAT although that will take a long time. The easiest thing to do may be to ask then outright what they want and be prepared to compromise.
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.
I’m not sure of the issue
That you have done modifications that benefit your lot, would not be a reason to delay a sale.
The situation is that the sale document would show only your lot and the bylaws would show any agreed modifications.
A buyer would look at this and say that there is a risk for them in that they may be required to take down some modifications, or else put in time , effort and maybe money to have the modifications made legal.
It means you will get a discounted sale price (I’m not sure how you quantify that) as the buyer is taking a risk
However in a hot property market, many buyers will overlook such a defect if they consider it a good property
It sounds like you might be successful in resolving the dispute, but that the dispute itself is causing you to delay the sale. As stated above, this type of dispute cannot delay the sale. But you need to be transparent to prospective buyers. Knowledgeable buyers who understand strata might not be put off, but others might be. A suggestion is to be a legal opinion from a reputable strata lawyer (or from 2) outlining the issue, and how to deal with it, and providing an opinion of the risks involved, (ie, that the gate may need upgrading or repainting etc). Provide that opinion to prospective buyers, and go ahead with the sale.
As stated above, this type of dispute cannot delay the sale.
In theory. But strata records where someone is disputing changes to common property will put a lot of potential buyers off. It may not prevent the sale but it could certainly put a dent in the potential sale price.
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.
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