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.