Sometimes parts of the body corporate common property are allocated to specific lot owners as exclusive use. If exclusive use allocations are made they must be recorded and then the allocation becomes, well, for the exclusive use of that lot owner.
Basically an exclusive use area becomes an extension of the lot and the lot owner will have complete control and responsibility for it, notwithstanding the area is still a part of the common property.
Finding Exclusive Use Allocations
In most cases there will be a bylaw contained in the CMS that governs the allocation of exclusive use and sets out rules for its use and care. Schedule E of the CMS will then set out the actual allocation to each lot. Finally the Plan of Exclusive Use will be included at the back of the CMS showing actual physical location.
Just because there are no exclusive use allocations contained in schedule E of the CMS doesn’t necessarily mean that there are no exclusive use allocations made. Other options for exclusive use allocations are:
- Older buildings registered prior to 1997 may have had exclusive use registered in Notification of Change of by-laws.
- Exclusive use allocations can be contained solely within a by-law. For instance the by-law may say something like “… each lot owner has the right to car space marked with the same number as the unit …” or other words that effectively allocate the space in an identifiable way.
- Exclusive use can also be recorded on a title – a common example of this is a balcony in an apartment building or a carport in a gated community, both of which are usually shown on the plan of each actual lot.
For the most part though, exclusive use allocations will be allocated through the by-laws and schedule E of the CMS.
How are exclusive use allocations made
All original allocations of exclusive use, if any, are made by the original owner – ie the developer. Indeed the allocations of exclusive use directly affect the value of the lot. For instance a lot with two car spaces allocated has more value than a comparable lot with only one car space.
Allocations can also be changed by agreement between lot owners. For instance, say two lot owners decide they wish to swap car spaces. A new CMS can be recorded that shows that reallocation.
Otherwise, changing exclusive use allocations can only be done by a resolution without dissent recorded at a general meeting.
Examples of common exclusive use allocations
- Car spaces
- Storage spaces
- Courtyards
- Balconies
- Roof top access
- Lift foyers eg only those who live on floor 5 may access level 5
There may be some areas of a body corporate that are only available to some lot owners. The area would likely be allocated as exclusive use to those lots only, and further, the cost of maintaining that area would likely be charged to only those lot owners who have access as a separate levy.
Examples of this sort of arrangement are:
- Home offices
- Exclusive garden areas
- Exclusive pool areas
Marina berths are occasionally allocated as exclusive use but are more often treated differently because of their inherent differences.
Unless stated otherwise all the information on this website relates to Queensland legislation.
We have an exclusive use area on our common property which can be used for management to hold functions.It is an outdoor area overlooking the beach.Our body corp fees maintain this area.When not in use for a function,would this allow other Lot owners to be in this area for their own enjoyment?
Sharyn.
Hi Sharyn
Hmmm… there are a few assumptions I need to make here.
When you say exclusive use, I assume you mean its allocated to a lot. How can management then hold functions? Is it a term of the exclusive use allocation?
If the area is simply a body corporate area then it’s common property and yes, other lot owners should be able to enjoy the area.
If the area is allocated to someone else, say the Onsite Manager, then no, the area is there exclusive use, exclusively for them.
So I guess the answer depends on what the area is actually allocated as and to whom.
Hi I have an exclusive use area attached to my townhouse ,there is a wall on the Boundry of this exclusive use area that is the back wall of another unit in the complex. I have just received a voting paper to approve two air conditioning units on this wall . There are only three units and three votes in the complex I am likely to lose this vote as I would be the only one really affected by the installation of the units on this wall. Does exclusive use areas include bordering walls ? I don’t necessarily disagree with having the air conditioning units there but would like some say in where they may be positioned. Do I have any other rights other than my one vote?
Cheers Steve
Hi Steve
That is an excellent question and one I don’t know the answer to. Its complex and will depend on the exclusive use grant. Its a question for an Adjudicator. Your best bet might be to speak with the Office Commissioner Body Corporate. They have an adjudication help line where they will discuss potential cases with you.
Exclusive use areas are designated on the plan of exclusive use. You’d have to refer to that to find the boundaries.
Our Owners Corp Committee (VIC) permits a lot owner to use the seating area (common property) of our complex Foyer for meetings of a group (6-12) she is a member of (mostly external non-resident attendees).
The meetings last 1-2 hours and are monthly. During this time no one else can use the seating area nor can they gain access to the outdoor common property seating area.
Can the OCC do this or is a license (OC Act Sect 14) required to do so?
Any advice is appreciated.
Hi Tony
I can already tell you know more about the legislation in Victoria than I do. I would check if there are by-laws around use of the area. If there are, great, you can see if they’re being violated. If not, things are a bit stickier. I suggest discussing your concerns with your strata manager or committee.
A unit owner has fenced an area of approximately 700 mm x 6 meters adjoining their unit effectively increasing their land size. This was approved by the committee but the application specifically mentioned that the fence would be “on their land of course.
Part of the body corporate committee ( 3 unit holders with the exception of the owner of the encroaching unit and the exception of one dissenting committee member who dissents now the fence is built on common land) that were voted in at the AGM in November 2016( no AGM since then) are insisting that the fence will stay ( and in fact have helped paint said fence) . We do have a Strata Manager who it seems has said the fence can stay Despite the fence enclosing common land an affecting the visitors car park which is part of the council DA. If the required 3 car parks are in use it is not possible to open the passenger side if parked near the fence. The fence can be seen from the street and is not in keeping with the modern clean lines of the units. There are 9 units in the scheme . Two have notified the Strata Management in writing , one via telephone. 3 have notified the Body Corporate committee that they are not happy with this encroachment on common property. I have contacted Strata Management but do not get replies except to say that the manager is being forwarded my emails. I am forever frustrated as it seems I get no where with what I believe is a legal issue.
Hi Carol
The committee cannot grant common property to a lot owner. A resolution without dissent passed at general meeting must be made to grant an exclusive use area to a lot. Disposal of land is a restricted issue for owners. There should also be a payment involved.
You will need to make an application for Adjudication that the grant is unlawful and needs to be reversed.
Thank you…this is how I understood my reading.
We have an exclusive use area set for a shop. Part of the exclusive use conditions is that it does not open till 7.00am. It is now opening at 5.30am. Is the time limit enforceable and how do you go about it? Thanks
Hi David
Presumably somewhere in your by-laws either the allocation is made or its noted that conditions of allocations need be met. If that’s the case then it is a breach of by-law that the shop is opening earlier than it should. The by-law breach process is set out in the act: you must issue a Contravention notice and allow the owner time to comply. If they do not then Adjudication to stop them breaching may be sought.
If its not in your by-laws then I suggest reviewing the conditions of the grant. If the conditions are being breached then the committee may withdraw approval. I would suggest making the owner aware again and giving them time to comply. If they do not then withdraw the permission. If they do not stop, Adjudication is the next step.
Negotiation is always going to be the first step. Get clear on why you want them to stop and what ‘rules’ you intend breaching them under.
The 7.00am rule would be in place as there are residential units above the shop. We have tenants who are coming complaining they are being woken up. One tenant even brought there lease in saying they were entitled quiet enjoyment of their unit which we are not providing.
This is why it is imperative the shop does not set up on the footpath and start serving breakfasts at this hour.
I am in West Australia and I see you are in Queensland. Are the strata laws the same for both states,
I have an issue with balustrades on an exclusive use balcony.
Who is responsible for the maintenance and repairs of the balustrade.
Also the Balustrade was erected 30 years ago and now not compliant
Hi Alan
Yes the legislation is different WA to QLD. In fact no two states/territories have the same legislation. QLD and NSW are similar as they’ve third and fourth generation respectively, meaning they’ve been revised. I’m afraid I’m not familiar with WA … its far off my beaten track.
In all cases refer to your plans. In QLD if the balustrade is the boundary between lot and common property then it is body corporate responsibility to maintain and repair balustrades.
So long as the balustrade was compliant with Australian Standards when it was built it doesn’t now need to be bought up to current compliance standards. Unless the balustrade needs significant repairs. Builders may not significantly repair a non-compliant balustrade. Instead it must be bought up to standard, usually involving replacement.
Check out this article for more about balconies.
I own a lot in a Community Titles Scheme (Building Format) with an Exclusive Use Courtyard. The Strata company is stating the fence is not the boundary to my lot, instead only the walls of my building.
Storm-water (ground drains) within my Exclusive use Lot, I understand to be my responsibility, and the roof and gutter Body Corporate. Issue is – builder botched both the original and rectification storm-water drainage. Although under Home Warranty, no confidence exists for original builder to have a third attempt at completing compliant storm-water drainage. Please advise. Thank you.
Julie
Hi Julie
This sounds like a difficult situation – my commiserations.
The builder is still responsible for rectification under warranty, and will continue to be responsible until rectified, regardless when the warranties expire. Although you’ve hit upon the most common problem with these things: you don’t trust the Builder to do it properly, and potentially, they’re creating other issues that now also need to be addressed.
Your options are fairly simple here: either get the builder to fix it or fix it yourself. The body corporate is not involved.
Can you negotiate with the Builder, something like taking a cash settlement for indemnity on the matter? The settlement could go toward the expense of fixing. I imagine you’d still have out of pocket expenses but not as much and hopefully get complaint drainage.
If there are other issues around the scheme maybe its worth having a discussion with your committee. If they’re negotiating with the builder and have other plans for rectification works maybe you could piggy back on them? EG: use the same contractor or Engineer or whatever. They may not be able to offer any help but there’s nothing lost by asking.
Hi,
This site is very informative. It is much appreciated.
At our townhouse complex under a standard plan there doesn’t appear to be any documentation on exclusive use areas. However, when the complex was constructed it didn’t strictly follow the plan. Fences separating individual lots and common property don’t align. For example, the side of one townhouse is supposed to be the boundary, but there is a fence 600mm away from the wall, with a gate at the front of the townhouse so those property owners can access their back yard by going down the side of the house. It is a sensible layout. But I have these questions:
(1) While there is no documentation, isn’t this an “exclusive use” area because it was constructed that way when the place was built in the 90’s and it is solely for the benefit of the lot owner?
(2) Is maintenance of the fence which separates the private from the common property a shared cost? Or is it entirely a body corporate cost because, on the plan, it is on common property?
(3) Similarly, there is another fence separating private from common property which is away from the plan boundary by a similar distance (600mm), but in this case it is on the lot owner’s land. In this case the fence stands on a retaining wall. Is this retaining wall and fence a shared responsibility or does the cost and responsibility fall entirely on the property owner?
I would be grateful for any advice you might offer.
Paul
Hi Paul
To answer your questions:
1) if there is no exclusive use allocated in the plan how do you know its an exclusive use area? It’s just as likely that an owner of the lot took a piece of common property for their own use some time ago without recompensing the balance owners. You cannot make assumptions only deal with the facts, despite how the area may be treated now.
2) Maintenance of fences on boundaries between common property and the lot are joint costs. Fences within a lot are lot owner responsibility. If wholly on common property or the lot the owner or body corporate could remove altogether if they wanted. I have seen orders where it was held that the fence was the “boundary” despite being contained wholly within one lot. It is most likely joint, no matter where it is but should be dealt on a case by case basis by negotiation between parties.
3) Retaining walls are not diving fences. They benefit one lot or another: eg either you dug down and retained or retained and built up. A surveyor needs to be appointed to determine who benefits. The fence on top of the retaining wall could be on a “boundary” hence a shared fence.
Hi Lisa, are we able to build a fence to give privacy and safety on an exclusive use courtyard?
One of the by laws attached to the exclusive area use says you can any screen or device to stop insects or animals entering their property. And can put a locking or safety device to stop intruders getting on your property.
I look forward to your reply as we are having issues with a cantankerous owner. Who already has a fence on his exclusive use area.
I love your site, it is very informative.
Hi Amanda
In most cases if you want to install a fence around your scheme you will need to make an application to committee. Include as much detail as you can in your application – drawing of how fence will look, detail about height, location, material used. A quote would be great. The cost will be yours to bear but committee will need to approve. If others have a fence it shouldn’t be an issue.
Do we need to have our recently enlarged balconies and new lock ups surveyed to get a bi law granting exclusive use of them in our Strata block.
Thank you.
Do we need to have our recently enlarged balconies and new lock ups surveyed to get a bi law granting exclusive use of them in our Strata block.
I mea, have SURVEYOR do the accurate measurements.
Thank you.
Hi Ruth
You would need to refer to the by-law granting exclusive use. If your strata scheme is asking you to do it then it would appear to be a condition of the approval. Usually making sure that all council and legal requirements is met is a condition of the approval. Check the approval.
Having the enlargement and enclosure formally registered, ie having a surveyor prepare a plan of exclusive use, will make the resell of the lot much easier. Future owners will want to check that all is approved and all boxes are ticked.
We have an exclusive use garden.
Can we erect a free standing Vergola type pergola structure close to the rear of the building if council allows under their height restrictions. Without permission from body corporate. We are in a block of 4 over 55’s with one owner owning two apartments on 2 titles which have been opened to one.
He has explained that he bought both so he could have 2 votes and control building.
Michelle
Hi Michelle
Check you by-laws. You will most likely be required to have approval, however only your by-laws can confirm.
Seek approval. If the other owner votes NO then find out why. Because they don’t want you too is not a good enough reason. They must have well thought out and logical reasons. Committees and owners in a body corporate are required to act reasonably. If you feel the resistance is unreasonable you can seek conciliation to discuss and find agreement, or if that doesn’t work, Adjudication to have the matter declared passed. Then an Adjudicator will decide what is reasonable and what is not.
Hi Lisa. We have exclusive use to a garden plantation in the BC, with 6 palm trees over 5 metres. Whilst we care and maintain the (Flowers/hedging) garden, who is responsible for the cutting of the branches ( fan leaves/frond) of the trees…body corporate or us? Should a branch fall and injure a invitee or owner who carries the liability? Thank you
Hi Joseph
Maintenance and care of trees in exclusive use areas are lot owner responsibility, unless otherwise changed in your scheme’s by-laws. You will still need to seek approval before major works to the trees.
I have one parking space and exclusive use of another parking space in the unit block car park. There is a by-law that clearly identifies the exclusive use which was set uparound or shortly after the building was completed in 1973. Another lot owner says that the unit entitlements clearly don’t reflect this additional car parking space as my entitlements are lower than hers and our units are the same size and they have 2 spaces on title. Does she have grounds for the unit entitlements to be reviewed?
Hi Sarah
I don’t know. This is a question for an Adjudicator, and in matters of lot entitlements a specialist Adjudicator would need to be appointed.
Hi Lisa
I have drainage/storm water issues. There is an Exclusive Use garden area (aprox 56m square) as part of my property. Is it the Body corporates responsibility to instal drainage controls in the Exclusive Use area? There is none installed in Exclusive Use area from the time the complex was built. There is no obvious water related drainage damage visible. But the downhill neighbour is asking the Body Corporate to pay for damage to her steel posts on her deck and house. I own thin bit of land apox 15m square of land between the Exclusive use land and the neighbours property. Again with no obvious signs of water related damage on my side. But there is a gentle slope toward her property. I do not have any drains along that neighbours fence line.
The Body Corporate claims I am solely responsible for the drainage of the Exclusive this land and there fore responsible for the cost of repairs. Is this correct?
To complicate matters A body corporate Hydrologist report show water entering the Exclusive Use area which is terraced (rock wall 1.5m) with a gentle slope down to my land then the neighbours property.
The history is that the Exclusive Use area was meant to be 2 car parks but because bolder wall placement it was deemed unsuitable for its intended use. After a 2 year period the land was given free of charge to the previous owners as Exclusive Use land.
I look forward to your reply.
Thanks Steve
Hi Steve
This is a complicated question and you should speak with a strata lawyer or possibly the Office Commissioner Body Corporate.
The strata implications of the Exclusive Use are that is its your land and you are responsible for any works to that land.
Re the drainage causing damage: My partner and I own a property in a housing division in a reasonably hilly part of town. We are towards the lower end of the hills around us and during heavy rains we are inundated with run off from other properties. So basic research I did before adding drainage gives me the impression that we as neighbours are not able to claim damages for damage caused by run off from other properties. Out local laws do not create any “duty of care” that might allow for financial reimbursement.
I am not a lawyer and cannot comment towards your scenario but given my experience I suggest you look into the presumption that someone needs to pay for the damage caused in the first place, body corporate or otherwise. Certainly the drainage works to your exclusive use area would help the situation for your neighbour, but again referencing my experience, you are not required to factor that into your decisions making.
Again, I am not a lawyer, and there may be factors I do not understand at play here. I suggest you investigate further.
Can Body Corp restrict planting of flowers in garden beds that are designated as Exclusive Use
HI Barry
It depends on the by-laws. There have been many Adjudicators Orders about removing shrubs and trees from exclusive use areas (all turn on specific circumstances but general rule is don’t make changes without approval).
That said, everyone is required to act reasonably. Is it reasonable to restrict what sort of plants someone can plant? I suppose it depends on whether those plants can be seen from common property, whether they’re likely to cause damage to infrastructure, whether they’re likely to create debris, that sort of thing.
We have an exclusive use allocation in our resort.
When reading BCCM rules it states that all maintenance of the lot belongs to the owner unless mentioned otherwise in the Bylaws.
The Bylaws state that the owner is responsible for the cleaning of the lot.
Does this mean “as well” or “only”
It is confusing
Hi John
I’m not sure I understand the question. Lot owners are responsible for cleaning and maintenance of the lot.
If you have an exclusive use area allocated then the by-law for the allocation may have terms and conditions. One of those conditions is likely that the exclusive use area be kept in a clean and tidy condition by the lot owner its allocated to. Refer to your by-laws for details regarding your lot.
If there are no conditions then BCCM legislation would apply. Exclusive use areas are generally considered responsibility of the lot owner to clean and maintain. Structural issues with the area would be body corporate responsibility to rectify.
Thanks Lisa, sorry for the confusion.
The Bylaws state when referring to
4. Maintenance of lots
An owner or occupier of a lot will
(iv) Maintain and keep in good condition and repair and keep clean any part of the property which the proprietor has Exclusive Use of.
Then at
45. Exclusive use of Spa area
(c) The owner or occupier of Lot .. must carry out and assume the responsibility of the Body Corporate under the Act in respect of the cleaning of the Exclusive Area under the act.
The owner believes that 45 (c) overrides the BCCM legislation and the item at 4. (iv), and is only responsible for the cleaning of the Lot.
Do you read it this way?
Hi John
My understanding is that 45 (c) will apply and the owner will be responsible for cleaning of the spa area.
Thanks Lisa
So you believe that 45c overrides the BCCM legislation and the Maintenance of Lots by law 4 (iv) and the owner ONLY has the responsibility of cleaning for that lot.
Thanks again
John
Hi John
I don’t understand your question.
The by-laws are quite clear. Whether they’re enforceable is a question for a Solicitor.
In QLD because a few owners have exclusive area use can a simple majority of a meeting allow exclusive area use to another unit? It was our understanding that this could only be approved with a vote without dissent.
BC manager says precedent has been set with the original exclusive use being allowed to a few in the original format plan. My objection is that part of the value of the entire property in theory passes to one owner at the expense of all other unit owners with no compensation, one gains value, the remaining majority lose.
Thanks
Brian
Hi Brian
I agree with you. Allocation of exclusive use should be by motion without dissent.
Object to the allocations via dispute resolution process via Office Commissioner Body Corporate.
Hi,
We have an exclusive use area out the back of our unit (lawn and garden) that looks directly into our living space.
In the past, the property manager has considered owner preferences with regard to pruning and garden maintenance. The new property manager has indicated that he will be coming up with a plan to reduce the number of palms and the foliage to ensure a uniform look and to make maintenance easier. We look straight onto this area from our living room and patio and we don’t want the foliage / number of palms to be reduced.
We have also recently had an apartment block go up opposite our unit that looks right into our living room, so we appreciate the little bit of privacy afforded by the palms and foliage that we have out back. I keep the area tidy, removing dead palm leaves and placing them neatly for the gardener to collect.
What are my rights in this instance? The area is neat and we are the only ones who see it. I have already had to engage a property conveyancer to prevent a mosquito treatment being carried out on our private patio (our plants and belongings), which is part of our lot (on title) as the property manager advised that this too was common area.
Please advise: 45/8 Woody Views Way,Robina, 4226
Thanks, Janine
Hi Janine
You need to refer to your by-laws. They will likely have terms regarding exclusive use allocation. You need to clarify terms of the allocation. Are you sure the shrubbery in question is on your exclusive use area?
Generally speaking owners are responsible for the maintenance of exclusive use areas and that includes trees and shrubs within that area. The body corporate will have some control in terms of damage being caused to the building … so for instance if tree roots in an exclusive use area are causing damage to pipes or foundations. Essentially there needs to be a good reason why they would make alterations. If there is a reason then they can ask you to make the alterations at your cost.
Speak with your body corporate immediately and make your preference heard. This is a dispute and if you need to seek further action you will need to have tried to self-resolve matters. Hence speak to the body corporate seeking permission to keep your exclusive use as is, assuming there isn’t something specific in by-laws which gives control the BC.
Also speak with the office commissioner body corporate if its looks like the committee / Caretaker are going to disregard your thoughts. You might have the option to seek Adjudication that the works not be done.
Hi Lisa,
Janine and I both spoke to the Property Manager on a number of occasions since December. He assured both of us that he would not do anything that would impact on the enjoyment and privacy the Exclusive Use Area gave us. He said he would not cut down the Palms and clear out the foliage. My last conversation with him was on the 9th of June 2022 where he assured me again that it would not happen. On the 13th of June while we were at work, he removed all the foliage and cut down much of the Palm tree’s.
Our area has been destroyed. The privacy removed. The grass has been killed after a weed treatment seems to have gone to far which doesn’t seem to have happened to any of the other units in our row. Talking doesn’t seem to have got us anywhere. I’ve expressed our disgust with the Managing Agents as complaining to the Body Corporate Committee is pointless. The Chairman owns the gardening service that the Property Manager hires to maintain the complex. The Chairman is the one who helped get the Property Manager the Property Management rights to the complex. The Chairman is often doing some of the gardening work himself.
Do we have any case that we can bring forward with the help of an Attorney? At this point I’m not interested in sitting around a table to talk about our differences and come to some amicable agreement. I thought we had an agreement. I want some form of punishment and compensation.
Regards,
Stuart
Hi Lisa,
We have exclusive use of a courtyard area approx. 48m2 (currently lawn and garden with no fencing) that is directly next to our balcony in a two lot community title scheme (QLD).
Our neighbour also has exclusive use of a courtyard area behind their lot however this is fenced already.
In the CMS by-laws it states:
1. “The occupier shall be entitled to the exclusive use and enjoyment of the courtyard being marked “A” on the plan annexed hereof”.
2. Each occupier shall be responsible for all gardening, cleaning and maintenance work and all costs therein from time to time necessary or desirable in respect of the occupiers courtyard.
We would like to build a pool and fence in our area, would this type of use be permitted?
Do we need to simply let the body corporate know of the proposed changes we’re planning to be made within the exclusive use area boundary, or do we need to seek the appropriate approval from the body corporate first?
Any help would be greatly appreciated.
Regards,
Tim
Hi Tim
In a two-lot module essentially the body corporate / committee is you and your neighbour. You’d need to refer to your by-laws to find out if those sorts of changes are allowed and most likely it will say you need to seek approval of body corporate / committee.
Approval can be as simple as your neighbour agreeing to the works. I would send them an email asking if they have any objection to you doing the works. If they don’t object keep their response because that’s essentially approval. You can use that when you sell your lot to establish the changes are approved.
Bear in mind bodies corporate are required to be “reasonable”. If the neighbour doesn’t approve, ask they why? If they do not have a compelling reason that could be considered unreasonable and give you capacity to seek Adjudication or conciliation on the matter.
Hi Lisa,
We have one Owner who has an exclusive use of balcony area.
I have three questions to ask if I may.
1. Who is responsible for the repair of the cracked tiles in the balcony?
2. Who is responsible to correct the fall of the balcony for drainage purposes?
3. Who is responsible for maintaining/cleaning of the balcony which had accumulated dirt\moulds overtime?
Hi Gil
There are a lot moving parts to this question. I encourage your body corporate to seek legal advice on this matter as it may need to be researched to find the appropriate answer.
Firstly you need to consider the terms of the exclusive use allocation.
If the balcony was part of the lot matters are a lot more straight forward. The owner is responsible for maintaining the balcony which would include the cleaning and removal of accumulated dirt / mould. The owner is also responsible for the tiles. The body corporate is responsible for the waterproof membrane and slab underneath the tiles because presumably that slab / membrane services more than the one lot. Matters are complicated when maintenance of the tiles above impacts the life of the membrane and slab. Correcting the fall of the slab will depend on where the issue is. If its with tiling then the owner, if its with the slab / membrane the owner.
Things become more complicated when the area is exclusive use. Body corporate retains ownership and the terms of the grant will have impact.
This is a complicated question. I suggest that you find out what the problem is and how it is to be corrected then seek legal advice as to who is responsible. If the issue has arisen in one lot presumably it has or will arise in others. Maybe also check the records to see if previous committees have dealt with the matter already.
hi
i am on the body corporate committee of a freehold retirement village that has a exclusive use area for all units, all units are semidetached, the residents are responsible for maintenance for this area.
Does this include the cleaning of gutters, the repair of broken windows, the repair of storm water drainage, the outside walls of the unit, and any water taps within this area.
I have an exclusive courtyard (Registered with title) with my unit in a large complex in the Gold Coast. Currently rented out and I have not personally been there for a number of years. In a photo I just received it shows all the beautiful garden and trees mostly gone and a number of planter boxes around the perimeter. All scraggy and very messy looking. Certainly not the lovely view we used to have from the lounge. It turns out the Body Corp gave permission for the area to be used as a community garden. We were not advised or involved in anyway. I cannot see any information in minutes regarding this use (does not mean I have all records). Can the Body Court do this. What can I do about it, thanks Chris
Hi Chrys
If an area is allocated as exclusive use the only way to change an allocation is by resolution without dissent. That doesn’t mean everyone needs to vote, only that of those who voted nobody voted against. You should see a change like that in minutes.
If its done without your knowledge, and without any sort of resolution at general meeting, then raise a dispute with the body corporate. First you need to establish that the area was definitely either allocated to you or is part of your lot. Probably the easiest way to establish this will be to raise the matter with your committee and see what their response is.
If the area was common property, then yes, the committee or owners may make a resolution about how that area is to be used by all persons.
Thanks Lisa,
The Strata Manager (SM) confirmed in an email it is an exclusive area attached to our unit. The CTS also confirms this and no change recorded.
Strata maintains the area and this is in the CTS. SM says “The area you identified is your exclusive area. If not fully fenced the Body Corp manages and maintains the area as common property as it seems appropriate. ”
The CTS does not say anything about an unfenced exclusive area being used as the Body Corp sees fit. Simply if fenced owner maintains if unfenced Body Corp maintains.
Is it correct that this would fall under Restricted Issues – Act, section 100 that the committee does not have the authority to change privileges of owners of lots included in the CTS. If they want to change the exclusive use, to do so would be as you suggested above, Section 171 of the BCCM Act
The SM says in email “If you believe either that the committee did not authorise it or that the committee did not have the authority to approve it, then I suggest you make an official complaint to the commissioner.”
I would rather resolve the issue in house, but would appreciate your further input on my above points.
Hi Chrys
You are correct. If the area is allocated as exclusive use then it is a restricted issue for committee. Any reallocation must be made by resolution without dissent at general meeting. Even though the body corporate takes care of the area it is your exclusive use area and they cannot disregard that allocation.
The strata manager is correct you can make an official complaint to the commissioner. You are also correct you must try and resolved in house first. I suggest writing to the body corporate and expressing what you want. Cease using the exclusive use area? Return it to its former condition? That is up to you what you want.
Once you’re made your request, see how the committee respond. If they out and out dismiss you, then seeking Adjudication is your next step. Hopefully a solution will be able to be negotiated.
Hi Lisa
This is what they have now given me (below) as legislation allowing them to put the community garden. I feel that this is really pushing boundaries, can you please advise. I believe, they must first address the exclusive use bylaw before anything else. In this case the bylaw excludes the committee making any changes without owner permission or all owners without dissent. Is there a section/clause that relates to what happens when BC manage outside their authority?
Thanks Lisa
1. The Committee granted permission for the creation of a community garden. Exclusive use of that area is identified in the Survey and Building Format Plan 13878 certified on 9/6/1994. Lot 68 (Unit 150) and lot 69 (Unit 151) are the strata units affected. The permission was granted even though third-party permission had not been obtained. None-the-less, all conditions to give permission to establish a community garden were met under Sect 94 and Sect 95 of the BCCM Act 1997, therefore the permission remained both lawful and valid.
Hi Chrys
This publication notes “Section 171 of the BCCM Act further provides that an exclusive use by-law may stop applying only if the lot owner agrees in writing or votes personally in a resolution without dissent consenting to the recording of a new community management statement that does not contain the exclusive use by-law.”
That then means to me if the exclusive use was allocated to your lot, and you didn’t agree in writing or by voting in a resolution without dissent, or past owners didn’t, then it appears to me you didn’t agree and the exclusive use should continue to apply. In which case, why have they created a community garden in your exclusive use area?
Write back to the strata manager re the above. Keep your correspondence. If they continue to deny your assertion then you may need to seek adjudication via BCCM Commissioners office. You must try to self-resolve first, which is what the correspondence is about.
Thanks Lisa
None-the-less, all conditions to give permission to establish a community garden were met under Sect 94 and Sect 95 of the BCCM Act 1997, therefore the permission remained both lawful and valid. How can these sections he quoted be applied.
Hi Chrys
That is a question to address to the person who made it or a Solicitor. I don’t know what they mean.
I have a question, based in QLD is exclusive use is provided to an area which is designated as a restaurant & bar, and then the area has been closed for a number of years can the committee request that details on when it will be opened or consider if it’s not being used for it’s approved purpose it be returned to common property?
Hi Shaun
You need to check the terms of the exclusive use allocation. If it was allocated specifically for the use as restaurant and bar, then yes, they committee may request details of when it will reopen.
If you don’t want to reopen the restaurant and bar and committee wish the area returned to common property, be sure to review your contribution lot entitlements as they may need adjusting lower as well if you no longer have the exclusive use area.
We own a unit in a two lot Strata Tile arrangement. There is effectively a Body Corporate in name only as no committee, no levies, only shared building and public liability insurance. There is a piece of common land in front of our unit laid to lawn and garden beds that we have been maintaining at our own expense for the past 5+ years (mowing, weeding, pruning, etc.). Do we have any rights to claim for exclusive use?
Hi Alison
You don’t have any automatic right to claim the area as exclusive use. It might already have been allocated as exclusive use, so check that in any by-laws / CMS.
Having it allocated is something you can do. You need to have the other owner agree, and then register a new CMS.
Hi Lisa,
I’ve been looking everywhere to find some reference to this issue, without success. Negotiations have stalled.
I am in a first floor unit.
There is a tree in a ground-floor exclusive-use garden which 40% blocks sunlight to our bedroom. Do we have a remedy?
There is also a tree in a ground-floor common-property garden which 50% blocks our view of the pool. Do we have a remedy?
Thanks,
Joanne
HI Joanne
What is the remedy that you would like? Have you asked the owner / body corporate about what they are prepared to do?
I ask because you can seek Adjudication or conciliation however you will need to be able to demonstrate that you have tried to self-resolved matters first. All parties have to be reasonable in their dealings. So if you are making a reasonable request of your neighbour, and they are objecting, you could start the dispute resolution process via Office Commisioner Body Corporate.
We only have two seperate units on one lot, we are number two at the back. There is common property at the front of Unit one which is a large area of lawn up to the fence line in front. The lady erected a carport with a concrete base without council approval. We originally gave consent but now she cannot get approval as it was not grante originally as the concrete would cover the pipes for sewerage for both units and water. Now she wants us to sign a document stating we agree for her to erect it, and I think this would be fraud and we could be liable for signing it and it is a lie as it has been already erected. The council also told her she would have to get body corporate approval but we do not have one, so I can only see that she has to do a exclusive use application or purchase the land. She is a very demanding lady and there is always something she wants so hubby does not want to cause issues and we have been more than accomodating. Would appreciate some advice Thank you
Hi Rhonda
You and the other owner make up the body corporate. If you sign the document then you are providing body corporate consent.
Don’t sign unless you want to. Or alternatively, if they pressure you, make the signature subject to conditions, such as approval by the Council.
Hi,
I have an area of yard in front of my town house. I would like to apply to make it exclusive use. Do I need to involve surveyors and the like and what forms/applications do I need please?
Qld
Hi Luke
The place to start is to confirm the area is common property. Then you will need a resolution without dissent to have the area made exclusive use for your lot. I would start there. It costs nothing to put forward a motion at AGM, even a motion in principal as it cannot be registered until the survey plans are done.
However, it is hard to have a motion without dissent passed. And the other owners will likely, and in my opinion appropriately, want some form of payment for the allocation. If it were me, I’d negotiate that part first before moving on to nuts and bolts of having a new CMS and exclusive use plan drawn up.
Hi re exclusive use: There’s been a verbal agreement re exclusive use between tenants and body corp, in a duplex situation. So whats the next step to get this legally registered with ( council I presume)? also what paperwork is required for the next step?
Hi Ken
The body corporate must convene a general meeting and pass a resolution without dissent to allocate exclusive use areas. Those areas need to be drafted into an exclusive use plan, usually done by a surveyor. If a cadastral surveyor, they may also be able to help with registering a new CMS. If not, you will likely need a Solicitor to prepare and lodge the new CMS.
Get you plans draw first as the body corporate has three months from the resolution to record the CMS or a new resolution is required.
Hello,
I have an exclusive use area under a Specified Two-lot Schemes Module. The other owner is refusing to allow us to erect a fence dividing the two exclusive use areas, because they don’t want to encourage any tenants of theirs to have a pet. We have offered to pay for the full fence, but they still refuse.
Can I build one anyway?
Hi Holly
If you build the fence without permission of the other owner you might find yourself in dispute. Of course you are already in dispute so its a challenge to know what is the best way forward. With disputes like this your next step will be to speak to the office commissioner body corporate. To me it seems unreasonable for them to deny you a fence based on what some mythical tenant in the future might think. Plus, rules about animals and tenants have changed recently and its a lot harder for them to deny an animal anyway.
You could challenge the decision disapproving improvement based on that decision being unreasonable. An Adjudicator has the power to order the fence approved. However, this person is your neighbour so if you can do conciliation which is essentially discussing matter in a situation with an expert then you have a much higher likely hood of reaching an agreement.
Maybe write to the other owner restating your request again. If the disapprove again, in writing, then you can seek further action.