Owner seals off access path despite denial of permission

I’d be putting a decent sign in sight from the Lot and on common property saying the exact unauthorized works are not included and are to be soon repatriated, with a suggestion all prospective owners be sure to have their conveyancing solicitor identify the formal Lot boundary and not take it as just what they are shown. It might also help to act as a prospective buyer and ask the agent to confirm such in writing, then it will likely be his head on the line as well as the seller. And acting as a interested neighbour visit the open house to be sure to ponder this aloud with other prospective buyers who would be interested in any intel they themselves would want to know before making any offer.

I think it’s been fairly well established that unapproved changes to the common property are subject to potential removal or remediation unless the owner has reached an agreement with the Owners Corp via a by-law.

The reason for this is, partly, that there has to be ongoing responsibility for the changes which can be passed on to the next owner without a legal battle over who is responsible for what.

In a case where an owner has made changes to the common property that the owners corp has not approved, the OC can ask the owners to either agree to a by-law (which they should pay for)  or pay for the reinstatement of the common property. Or the OC can seek orders requiring them to pay for the reinstatement and the costs of the action.  In other words, the OC is far from powerless in all this.

The law on this is enshrined in Section 108 of the Act. I believe that having been given the choice between legitimising their work on common property or having it removed, no Tribunal is likely to side with the lot owner.

The lot owner is protected in this in that the agreement can’t be rescinded later without their approval.

Your strata manager is making up strata law as they go, probably thinking (hoping) that it’s no big deal and it’s less hassle for everyone if they just record it but do nothing with regard to Section 108.

• This reply was modified 1 year, 10 months ago by .

When one owner does something silly, in a temporary or more permanent by-law or legislation breaching fashion, uninformed owners can think it is a committee fight only but that is not completely true. Sometimes the committee haven’t the fight in them, or go along with what to them is not an issue. Owners can still take up the matter personally with the right authority and if you think it will have long lasting, detrimental consequences that you won’t learn to live with, it might just be worth going it alone. Certainly, that’s the case in Queensland.

When we had an analogous situation, our EC let the selling real estate agent know that the owners had been issued with a ‘rules infringement notice’ re the unauthorised enclosure of common property (‘notice to comply’, I think, in NSW-speak). We had not yet reached the point of taking that on to the Tribunal before the unit was put on the market. The selling real estate agent was very diligent to let the more serious prospective purchasers know that the relevant unapproved fence had to come down and to make it clear where the boundaries were and the sorts of boundary treatments that were approvable under our rules. The new owners promptly fixed things up on moving in.

Richard dApice wrote:

The requirement is for mediation by the Secretary under Division 2 or otherwise.

So the CJC mediation service or another recognised service would suffice, I suppose. Thanks for that.  FYI, readers, Richard is an eminent strata and property lawyer.

• This reply was modified 1 year, 9 months ago by .

PJ wrote:

Should our Strata committee be seeking our own legal representation or is this likely just bluff.

Second question first – this is probably just typical non-strata-savvy lawyer bluff and bluster. The simple fact is that the owner has to declare anything to a purchaser that might affect their use of the property.  If they lie on the declaration, that is a criminal (I think) offence.

Just tell the lawyer that, especially in view of their letter, the committee will now be sure to diligently observe all requirements of strata and property law and you trust their client will do the same.  They should bear in mind that the owners corporation has a legal duty to protect common property for ALL owners.

As for hiring a strata lawyer, your call but a strongly worded letter might be all you need to get them back in their box.

By the way, I think lawyers who bend the facts to bully people into doing what their clients want should be struck off as a matter of course.

PJ wrote:

He states he needs to check that the strata committee has acted within its scope and with full support from the Body Corporate.

This lawyer needs to read up on his strata law.  The committee is empowered by the Act by default to act on behalf of the owners corporation except for in the very few matters where the law states that decisions can only be made by the owners corporation at a general meeting.

Issuing notices to comply and requiring owners to not annex common property are not decisions that require a meeting of the full owners corporation.

This is the kind of a-hole who gives lawyers a bad name. How about you tell him a) to point out where in law it says his client can annex common property without permission and b) that if he doesn’t pull his head in you will report him to the Law Society for knowingly giving unsound advice to his client for the purpose of bullying members of a strata committee into making a decision that violates strata law.

Or you could just tell him to stop harassing the strata committee and take it to NCAT and see how he gets on there.

But really, all you need to do is commence a mediation at Fair Trading with a view to seeking orders  at NCAT and if the owner doesn’t reveal that to potential purchasers he is breaking the law.

• This reply was modified 1 year, 9 months ago by .