Mojo

Hi Whale. It’s very interesting that you have mentioned that the concrete of the parking bay is actually common property. I was previously aware, thanks to posts here, that she needed permission to build a structure on her parking bay, but your comment clarifies why. So, thanks for that!

In terms of a licence for the common property rather than granting exclusive use, that’s an interesting option that I don’t think many people know about. I can see that it could be useful for someone wanting common property to extend a courtyard or something, but the problem with this for this owner, and the OC who could vote to grant a licence, is that the possibility for it to be reviewed becomes problematic as the owner is wanting to build over her parking bay, as well as the common property between her parking bay and her two story garage, enclosing all by her new large building. Once she’s built, it would be unfair to expect her to unbuild.

But, an option for a licence rather than exclusive use or purchase of ownership has a lot of merit in some situations.

Hello again! There’s been another development.

An advisor from Lands and Property information studied the strata plan in relation to the airspace above the parking bay. She said that the normal airspace is usually set at 2.4m, but in this case, this was left off the strata plan, and she said this was unusual.

So, it appears that the owner of the parking bay owns the airspace above it.

Does this mean that if she wants to build a structure on the parking bay, she can do so without OC approval?

She still doesn’t own land between the parking bay and her garage structure, so at least her initial plan for one large development can’t go ahead without being granted exclusive use of the small piece of land between.

Therefore, her original DA can not be gone ahead with. I assume that she’d have to put in a new or amended DA, and I also assume that this would need the Strata Seal on it to show that she had OC approval. Or, is this not necessary with an amended rather than a completely new DA?

Basically, she bought a lot that includes a parking bay. Can she build on it as she owns the airspace, even if the OC decide that they don’t want her to because of the impact on other units?

Thank you so much for your reply, Whale. At this point it looks like there will be an EGM with the sole purpose of fact finding – Q and A to the owner, in particular, looking at the limited information she provided to get approval for the extensions (ie no mention of gaining exclusive use of common property), with a view to the OC being able to decide for themselves whether she has concealed information to get strata approval, prior to providing different information to the council to get the DA approved.

I will definitely suggest to the OC that they need to get legal advice in relation to how to proceed.

One further question. In relation to the separate piece of common property she has already taken over and constructed a grease trap, the OC may decide to simply sell her this land. If they do, can they set the land sale price per square metre? On suggestion would be that it’s based on the value of the most recent sale in the apartment block, cost per sq/m in the price.

The owner who has built the grease trap may object to a price set by the OC, and may even get a private valuation (valuations are generally much less than appraisals) and insist on this.

To me, it seems that a procedure to get an agreed value is strongest if this takes place before the common property is built on. In such a case, the OC doesn’t HAVE to sell, and the potential purchaser doesn’t HAVE to buy.

Now, though, after the fact, I would think she should not be able to dictate the price. My thoughts are that are that she would have to accept a reasonable price for the land, even if it is a little on the high side. If she didn’t want to accept the price, she would have the option of removing the grease trap and restoring the common property.

She has a bylaw being prepared for the AGM by her lawyer, but this hasn’t happened yet and she hasn’t been granted exclusive use, as is her plan, but she’s pre-empted a successful vote.

A final question. A resolution was passed at the initial meeting to give her permission to build the garage extension and to prepare a bylaw to be voted on. However, if it can be proven that she concealed important information when she presented her plans to the OC, is there any scope to have the approval reversed by the OC, perhaps by a special resolution at a GM? Or, is the OC stuck with having the approval granted, even though there was deception. Note, though, she can’t go ahead with the garage extension without the exclusive use bylaw, but the OC may want to stop her extension plans completely and send her back to square one – needing approval for the plans themselves.

BTW I got a further email from the owner telling me that I was not permitted to speak at an EGM even with a proxy vote. Thanks to this forum (and Fair trading) I know that’s not true. She also informed me that as a tenant, I should direct all my concerns through my landlord’s agent, and should not be participating in any of the informal discussions some owners and I have been having about the situation. She’s stepped up her claims of harassment, and has now warned me that as well as her tenant the restaurant owner who previously threatened me with legal action, she herself may find it necessary to take legal action against me. As there is no basis of her claims of harassment, and, in fact, it’s she that has been emailing me, with me responding politely but firmly, I’m not bothered, and will respond according to the wise words of JimmyT in his previous post.

Thank you, Jimmy, for such a comprehensive reply. I had no idea of many of these things, even though I’ve been trying to look into the relevant strata matters. Thanks also for the reference to NCAT. I only knew about Fair Trading.

I’m starting to thing the Strata Manager didn’t even go to strata kindy.

Btw I looked into a previous reference you made about “fraud against a minority”, also the related “fraud on a power”. I had NO idea about any of this! I think the two owners who have been/will be most affected because of the positions of their units directly on the ground outside the restaurant and next to the proposed garage extension will be interested, given that the EC all have units that are not affected by their positions on upper floors.

I’m hoping, though, that with the knowledge I’ve got from here and can share with the owners, the bullying, concealing, and generally trying to shut people up will stop, and things can be resolved civilly. “Knowledge is Power” is more than just a trite phrase!

Thanks, PeterC, for your comment. It was encouraging for me.

JimmyT, your reply was incredibly helpful. Thank you so much for going through the issues, and most importantly, pointing to a very positive and effective way forward. The mess will be resolved, I’m now sure of this.

Oh, and thanks for the comment about responding to the legal threats. It made me smile, but if another one comes my way that’s exactly how I’ll respond. Ha. Bullies tend to back of if they see they fail to intimidate.

Whale, thanks for your additional comment. Yes, I’m just a tenant, but a resident in this community, and yes, I have strength in my convictions. As I said, many of the owners/residents here have become friends, and I hate to see them treated so badly, and potentially ripped of.

I’ve also searched and read similar topics in this forum, and found excellent information on this issue, but many other interesting things as well – it’s a great resource.