Back yard - common property

[s0805]

Hi all,

Just need to know if anyone else had similar situation in any of their investment journey....

i recently bought the unit and in my first meeting with body corp, i was told that backyard of my unit is part of common property, so they have arranged quote from conveyancer for me to lease this common property from body corp....

i've asked body corp to give me the plan to show where it defines common property (still waiting)....does anyone know where can i find these details...is anything i should be careful of before signing/agreeing to this lease....

disappointed that only after sale that i found out this is the case...whose job is it to find this out before sale...conveyancer,agent disclosure,i can't find anything mentioned in section 32....

cheers

 

[travelbug]

Are you talking unit as in flat? I know different places call flats different things. In Albury a unit is like a villa.

You should have been given a plan of the unit. VERY important so you know what you are buying.

When I bought a unit part of my unit was a car space and it was next to the stairs. The plan showed that I also owned under the stairs. Luckily I went to the first strata meeting as they had approved to get security bars stopping people from entering the carpark. They had designed the grill to run down beside the stairs blocking under the stairs. I informed them that it was my property and they couldn't block it up. So they put in a gate. Now I have locked storage next to my carspace.

Is the yard fenced off? If it is then just use it. Why do you have to pay to lease it? Just say no you are not interested. Who would want to go into it anyway?

If it's a thoroughfare why would you think it was yours?

More info please.

 

[Perp]

whose job is it to find this out before sale...conveyancer,agent disclosure,i can't find anything mentioned in section 32....

Yours!

Usually as part of the conveyancing process - at least in Queensland - you sign a survey plan, indicating that you understand precisely what you're buying. Nobody other than you can know what it is that you think you are buying; the conveyancer wouldn't have reason to assume that you would or wouldn't assume the yard was yours unless you told them, or queried it when you noticed it missing from the plan.

 

[Scott No Mates]

More info definitely required here. But my 2c - is the area common property? Do you have sole access to this area -ie can it be accessed from other common area or has a fence/walls been erected to prevent access? Is there anything contained in the by-laws granting exclusive use of this area? If all else fails, ask the conveyancer who handled your purchase.

 

[s0805]

thanks all for your response..

Are you talking unit as in flat? I know different places call flats different things. In Albury a unit is like a villa.

Is the yard fenced off? If it is then just use it. Why do you have to pay to lease it? Just say no you are not interested. Who would want to go into it anyway?

If it's a thoroughfare why would you think it was yours?

More info please.

It is villa unit, no apartemnt/flats.....the yard is fenced off...only my unit can access it either via unit or back garage door....as part of body corporate meeting
it was decided that everyone except one unit will have to lease back their backyard from body corp. Apparently the excepted unit's backyard is not common
property ( i can't see any specifically different for this unit in diagram)

As part of section 32 it has document called'Schedule of Unit entitlement and liability' within this doc it says
'the common property is all the land in parcel except the land in units 1 to 5(inclusive)'. It also says 'No unit on this plan is accessory unit'

I am not sure if I am looking at the right doc here or not.

Yours!
Usually as part of the conveyancing process - at least in Queensland - you sign a survey plan, indicating that you understand precisely what you're buying.

I did not sign anything speicific around this...I am not sure if it is the same process in VIC....

More info definitely required here. But my 2c - is the area common property? Do you have sole access to this area -ie can it be accessed
from other common area or has a fence/walls been erected to prevent access? Is there anything contained in the by-laws granting exclusive use of this area?
If all else fails, ask the conveyancer who handled your purchase.

Only i can access it(i mean ppl who lives in unit)....there is not even drainage or easements going through my backyard....backyard is fenced...I thoght the same
that my conveyancer should have noticed if something was like this.....

wat you guys suggest i do....apparently I am suppose to pay extra levy for conveyncing work to lease backyard from body corp...I've asked body corp manager to show me doc
where it says my backyard is common property before i pay....and i am not even sure why I need to pay for lease if it is common property.....I am lost

thanks heaps...

 

[Peter Parker]

It's important to work out the type of title the property is.

Company, Stratum, Strata or other

See

http://www.consumer.vic.gov.au/reso...-titles-home-units-bill/explanatory-statement

http://www.hayproperty.com.au/property.html

http://www.echoice.com.au/buying-a-home/types-title/

http://www.aussielegal.com.au/informationoutline~nocache~1~SubTopicDetailsID~797.htm

It is not uncommon to come across older units where originally unfenced yards have been fenced to provide privacy for individual residents. This probably increased rental returns for minimal cost. You might think that because it's fenced the land is part of your property but this may not always be so.

If the common property is no longer useful to other owners (eg it may be a small alley or a tradesmans toilet) you may wish to pay legal fees and a nominal rent (eg $1/year) to lease it for (say) 25 years. This would need support at the body corp meeting. This sort of stuff is optional if there's no benefit to the property's amenity and you're not planning to sell soon. But if it allows pulling down a fence to widen a private courtyard then it could be a cheap 'value add'.

Yes you should have looked into this before buying since your offer was based on ownership of an imagined larger amount of land.

But it may not be the end of the world if you didn't. Bear any costs involved (if you do wish to lease), count these as experience and move on.

 

[Scott No Mates]

A peppercorn rental is not out of the question but I wouldn't pay anymore. A bylaw for exclusive use would be better. The thing to consider is who is responsible for mowing lawn/maintenance in the area at present? Who is responsible for insurance? etc

 

[s0805]

Yes you should have looked into this before buying since your offer was based on ownership of an imagined larger amount of land.

But it may not be the end of the world if you didn't. Bear any costs involved (if you do wish to lease), count these as experience and move on.

Spiderman, i accept that it could be my duty to see what i m buying....but my problem is where do you look at to see if this is the case to avoid future mistakes...I am not even sure if this information has been disclosed in any form before purchase....

A peppercorn rental is not out of the question but I wouldn't pay anymore.

Not sure what does it mean.....

The thing to consider is who is responsible for mowing lawn/maintenance in the area at present? Who is responsible for insurance? etc

this backyard is very small area...No lawns, no vegetation...i think body corp is doing this because they want to pass the insurance liability of this area to unit holders....

who can help me locate this information to show that backyard is common property (any govt body or sort)....I am happy to pay for the lease...but also want to know if this info was given in what form before purchase to avoid future mistakes....

 

[GreenMedallion]

I'd be telling them that you don't want to rent it from them and that they can keep it and maintain it. You could even offer to maintain it for them if they pay you the small fee of $X per month.

 

[Scott No Mates]

A peppercorn rental is a nominal amount (say $1 pa payable on demand).

I would be persuing an exclusive use by-law for simplicity's sake (the right then passes to each succeeding owner). This is often used for garages/parking spaces which were common property but later allocated to unit owners.

Passing the Public Liability insurance responsibility to the unit owner would save the owners very little but would add equally very little to each owner's individual insurance policies.

 

[Peter Parker]

The section 32 should have included a map showing which parts are the property on the title and which is common property.

 

[s0805]

I'd be telling them that you don't want to rent it from them and that they can keep it and maintain it. You could even offer to maintain it for them if they pay you the small fee of $X per month.

that's good option....not sure though if i can do that...i mean all agreed to arrange quote for this work in AGM. But i guess
i can atleast ask to see firm document around this before i pay for it....

A peppercorn rental is a nominal amount (say $1 pa payable on demand).

thanks for the explanation...

The section 32 should have included a map showing which parts are the property on the title and which is common property.

spiderman, section 32 has map showing the boundaries around each unit but no mention of what consists common property.It only says 'the common property is all the land in parcel except the land in units 1 to 5(inclusive)'. what is parcel?
It also says 'No unit on this plan is accessory unit'.
One of the unit which is exempt from paying this cause they don't have common property has same structure as everyone else.


is there any state government body that stores these information and
can be accessed on request...like subdivision plan or something....also let's assume vendor did not mention this in 32's ( i can't find anything) then does it consider as not full disclosure?

 

[GreenMedallion]

spiderman, section 32 has map showing the boundaries around each unit but no mention of what consists common property.It only says 'the common property is all the land in parcel except the land in units 1 to 5(inclusive)'. what is parcel?

Parcel means the overall piece of land (lot) on which all the units and common property sits.

"except the land in units 1 to 5" - I'm not really familiar with strata units although it comes down to what the definition of a unit is. I suspect the 'unit' will not include the land behind the building, even if it has been fenced off at some point in time.

One of the unit which is exempt from paying this cause they don't have common property has same structure as everyone else.

That would be dependent on what the decided upon bylaws are.

 

[fernfurn]

We bought a unit with 2 car spaces included which were shown clearly on the title, and detailed in the documentation, so everything you bought should be on your title. Funnily enough the space out the back under our patio was not included, but we asked the bc and everyone agreed that my husband could turn it into a workshop, which we did and we have never had any trouble. I'm thinking your backyard works the same, who would want to come into it, who could access it. Sounds like no-one so I would not pay.

 

[Angel]

When we bought our townhouse, the documentation in the sale contract clearly stated what is our land and what is Common land. Last year my mother bought an end villa with land on three sides, all clearly displayed in the contracts. I also got a copy of the Bylaws myself just by asking BC or vendor's solicitor, cant remember which.

Every few months since purchase, Mum gets some lady on the BC telling her that she has to pay for stuff which is clearly common land (That is what a sinking fund is for). I have Mum trained now to attend all BC meetings with the documentation in her hand to educate the other owners about the power and control games this lady in the BC plays. I mean to read out what the bylaw states.

The moral of my story is that it is possible someone on the BC has no idea what they are talking about and just dreaming up ways to occupy their time and exercise their own self-importance. Ask for proof, most likely they wont have any.

I am on my BC and I have documents about what is our owner's land and what is common land which I need for the building and strata insurance. Mum got a copy from the titles office. Certainly the Secretary or Treasurer of the BC will be able to give you copies of all these documents.

 

[s0805]

Thanks all for your comments.

There wasn't any specific writing in plain English about backyard being the common property in section 32. But bc manager made me look at the
diagram (part of section 32) for all units showing backyard in question doesn't have closed lines around it indicating it being the common property. This basically proves that backyard is common property. bc manager advised they've picked this up earlier this year (pretty common for old sub divisions apparently) and according to legislation they will have to arrange lease
to make all owners responsible for their backyard. This will also make clearer for next purchaser to see what they are buying as well...quote is abt $300 and lease for 99 yrs (now i know what paper thin rental means...)

I think i was outdone by not looking at diagram closely enough to even think this could be possibility. Learned the lesson for next IP. She made it clear that not many conveyancer picks this up anyway...do you guys think good conveyancer should have picked this up...?

I also got a copy of the Bylaws myself just by asking BC or vendor's solicitor, cant remember which.
Mum got a copy from the titles office. Certainly the Secretary or Treasurer of the BC will be able to give you copies of all these documents.

Angel...dumb question but what is bylaws...are you suggesting if i would have requested copy of bylaw before purchase i would've known this...for future
references how do you get copy from titles office...do you just ring them and should above information be in there....

Out of scope question...but this $300 can't be tax deductible...or can be?

thanks guys.....

 

[marg4000]

Frankly, I think that $300 is a bargain to have the backyard clearly added to your title for 99 years. It will make things clear for a future resale.

I think the $300 will form part of the buying costs for your unit and come into CGT calculations, but, as always, check with your accountant.
Marg

 

[s0805]

thanks Marg...

 

[Angel]

Angel...dumb question but what is bylaws...are you suggesting if i would have requested copy of bylaw before purchase i would've known this...for future
references how do you get copy from titles office...do you just ring them and should above information be in there....

.....

Sorry, my waffle is confusing. The bylaws are a list of laws or rules covering everything the BC needs you to know, such as where you can park, where you cant, can you have pets, rubbish bins, outside lights, things like that. Mine came with some plans attached which clearly shows the individual properties and the common property. I meant you get this from the solicitor or the BC if the selling agent didn't give it to you with the purchase contract. You need a copy for yourself and your Property Manager.

The Titles Office in your capital city would also be able to supply a plan of the complex showing common property and each individual's property. Mum walked in off the street with her rates notice and paid a small fee and they printed out what she wanted. They also answered any questions and showed her how to read it. I guess you could go online and order one, I hate phoning govt depts.

 

[Angel]

It looks like your BC Manager does have proof and they are getting something cleared up that was probably not noticed earlier. I take back any comments about the likelihood it was going to come to nothing. I would still ask my conveyancing solicitor to check the plan for you now to be sure, and I wouldn't expect to have to pay any extra. Best wishes