Can a lot owner make an improvement to the common area for their exclusive use?
Common Property is owned by all owners as tenants in common in accordance with Section 35 of the Body Corporate and Community Management Act 1997.
If an owner within a scheme would like to utilise common property for their exclusive use, the legislation allows a Body Corporate to grant a lease or licence over common property or can grant exclusive use over common property by way of a by-law recorded in the CMS – both of these options requiring a resolution without dissent at a General Meeting.
In this months adjudicators order, we review an application made by one lot owner against the Body Corporate and 2 other lot owners, where the respondents were purportedly given approval by the Body Corporate Committee to erect a fence between their two lots.
Whilst normally the erection of a dividing fence would not be an issue, the dividing fence in question was placed on common property outside of the boundaries of their respective lots essentially giving the 2 unit owners more land and was blocking off access to other areas of the complex and common property.
The adjudicator sought comment from the Committee & the owners named as the respondents, to which the Committee responded noting that the area in question was not utilised by other owners or occupants and one of the lot owners had been maintaining that area for over 20 years at no cost to the body corporate. The applicant responded to these claims and noted that the decision of the committee to allow these two owners to fence common area without a lease or licence or granting exclusive use contravenes the Act and is a further breach of by-law 18.
As such, considering all of the information available, the Adjudicator noted “I am satisfied that the installation of the fences on the common property between Lots 36 and 37 amounts to an indefinite disposition of common property. That has occurred without a resolution without dissent granting exclusive use or a lease or licence. Accordingly, the purported approval of the fencing was invalid. I will make a declaration to that effect.
I further consider that an order to require the removal of the fences unless the body corporate properly authorises the use of the common property is warranted.”
The full order can be read here.
More information relating to exclusive use can also be read on the Commissioners Office website.
It is important to note that the adjudicators orders that we review each month are made on a case by case basis by the commissioners office based on the applications, submissions, by laws pertaining to each of the schemes, legislation that is applicable and are not a fit all order.