'Common ground' but exclusive use

mary&mat

mary&mat

Hi all,

Hoping someone can assist:

One unit has exclusive use of a courtyard attached to it, but it is deemed 'common property'. (They have a locked gate so no-one else can access it).

Works on a tree in this courtyard have taken place as it was ripping up pavers & affecting the flooring in the unit attached. The works come to approx $4.5K.

Each unit owner has contributed to the cost of the works & the B/Corp is now trying to reclaim the costs from the owner of this unit. The owner of this unit has now applied to VCAT saying they have 'leased' this land but b/c it still 'belongs' to the B/Corp they therefore shouldn't have to foot the whole bill.

Can anyone shed any light on who is in the right here?

If things don't go the B/Corp's way, (retaliatory i know:p), would it be possible to rip out the fence, put a BBQ in this area & have everyone be able to use it?

Thanks for your advice :)
 
Yup :D

This one's a good lil money spinner, but gosh, I'm not looking forward to the next B/C meeting....blah blah blah, talk about an actual issue, blah, blah, whinge etc...as I'm sure you're aware it's 90% 'I wanna talk & have people listen & make me feel special' & 10% actually addressing problems & fixing them :rolleyes: 2 hrs of min-numbing rants later & I'll be ready for a glass o white & a relax on the couch!
 
This sounds similar to the setup in the units I used to live in. We had three on a block, but there wasn't any official body corporate as they were old and it had never been done. So the three owners just came to agreements on what to do.

Anyhow, not long after I moved in, the owners of the other two units wanted their back fence replaced that ran along the back of their courtyards. Mine must have been done more recent than theirs so mine was ok as was the front garden area. I was a bit annoyed at paying for a fence that I didn't even see or have access to.

After a quick friendly chat to my solicitor, it turned out that the entire land was legally common ground except what our building was physically on. We all had courtyards, so it meant that really all our courtyards were common ground, although it was an understanding that each had access to only our own and we had gates and locks on them. But turns out due to it technically being common ground, I had to contribute to the fence.

Body corporate issues like this even themselves out though. I had a plumbing issue later on whilst there, and enjoyed handing over 2/3rds the bill to the other owners. Some people don't like body corporate living because of this, but you win some, you lose some in my opinion.
 
A lot will depend on the "lease". It is not unusual for a unit to be granted exclusive use of common land, particularly if it is positioned in such a way that it is not in general use or if use by other units would seriously affect privacy. Sometimes paperwork is never completed and it all boils down to "he said" or "she said".

Unless the land is actually included in the "lot" entitlement of the unit, it is common land and therefore the legal responsibility of the body corporate even if exclusive use has been granted.

Should you wish to "rip out the fence and place a barbeque on this land", this will have to be passed at a body corporate meeting. The cost will have to be paid by the body corporate.

Just be careful you don't win the battle but lose the war. It's often relatively small issues such as this that inflame tensions within a unit block to the point that life becomes very unpleasant for everyone long after the original issue has been forgotten.

Remember karma.
Marg
 
If its showing as common property on the strata plan/titles then that is what it is, common. It may the case that someone has previously erected the gate without authorisation to make it seem like it is exclusively for that unit and then everyone since has just assumed this was the case. I would check the strata plan and sketch of land on the title as this should give a clear indication of the allocation of spaces, both exclusively and commonly
 
Thanks to all for your insights & sharing :)

Unfortunately, that's how I thought it may go...(stoopid common ground - Homer Simpson voiceover)

I agree too Marg - karma! One day she will have to pay for something that she doesn't believe is morally right either...oh how I wait for that day :D

(Currently 'sucking it up' & getting on with life :cool:)
 
Our situation here in the west was that the original owner of our unit applied for an extension to be built on . BC agreed and it was all approved as exclusive use.
However we found this was never lodged with Landgate as a change of plans/entitlement. Once we noticed this, we lodged all plans,[previous and of the extension] with Landgate , unit entitlements were corrected, a small fee was paid by us. A new By law was also created to satisfy BC regulations that stated we owned this portion.
This are never would be used as common ground by others as it was right beside our unit [end unit] and was a garden bed.

With a large repair bill involved l would strongly suggest you go through the correct channels before upsetting other neighbours/owners.
Maybe a quick phone call to your local Land registrars office may clear it up.
A call to your states Strata Titles Secretary would also be of help.
cheers
 
Her karma may come back in the form of losing exclusive use of the common area!! If it is deemed no formal lease in place and all the owners have to contribute then the area may come back to full common property with no lease in place and voila they lose their extra plot of land!
 
I agree with biggles. Unless it is either:
-included in the lot
-the lease outlines that any repairs maintenance etc arrising from the exclusive use area is to be borne by the lot owner entitled to the exclusive use

then it is common property and bc responsibility

RPI
 
Thanks again guys & gals.

I'll look into what exactly the 'lease' is on the courtyard.

I'm also going to put forward to the B/Corp that the tree be removed. After reading the information sent by B/C (arbourist's report), it appears it'll cost approx $1.8 to prune the tree every year so it doesn't cause further damage.

I think my earlier spite about removing her fencing & placing a BBQ in there has subsided somewhat. Perhaps the best solution is to remove her tree & then she can deal with the hot sun in summer streaming straight into her living areas...ok, so I didn't completely let go of the spite ;)

B/C meeting 7th Dec, VCAT 17th...will update on outcome then.
 
M&M I saw this thread earlier, and gave it some thought, however still dont think I can give the best answer. While some things are every different from state to state, I think surveying etc may be very similar. Some years ago, the rules changed here, where in earlier years, "space" outside of the confines of the building, was included in the Title, however some time ago (forgive me I have forgotten when) the rules changed, and the "space" out side the building became "common" property, with exclusive use to the adjoining owner. At the time, a surveyor did explain the complex reasons why, sadly I have forgotten, but that may explain what you have. If you know a friendly surveyor, give him a ring. He may also assist with the "whose responsible" question of this exclusive use area. If he does not know, then find another professional BC manager, and seek their advice/opinion.
 
Quick update:

Had BC meeting last night. Seems there were leases drawn up approx 1988 for all the downstairs apartments with courtyards. They're very vague about which works the BC is responsible for & which the owner should pay for.

In their wisdom, the BC will be looking at drawing up new leases for these apartments in the new year, after we've been to vcat. They don't want to do it now as that would possibly give the 'tree lady' an advantage in her case against having to pay for the tree by herself.

So...we may have some chance at vcat due to these leases existing...update soon :)
 
Another update,

Spoke with B/Corp about VCAT. Was advised it was only the preliminary part of the process to see if there was sufficient cause to actually have a VCAT hearing. Our side rocked up with lots of legal documents & the whole paper trail of the saga. Her side consisted of her, no papers, just the story she had received 'legal advice' & wanted to proceed.

A hearing is now scheduled for end of Feb....here's hoping for a good outcome :)
 
In a lighter tone....
If I were the 'tree lady', I'd probably try to negotiate with BC to 'solve their problem': pick up the bill and get the yard included in my title :p
 
mary&mat said:
Hi all,

Hoping someone can assist:

One unit has exclusive use of a courtyard attached to it, but it is deemed 'common property'. (They have a locked gate so no-one else can access it).

Works on a tree in this courtyard have taken place as it was ripping up pavers & affecting the flooring in the unit attached. The works come to approx $4.5K.

Each unit owner has contributed to the cost of the works & the B/Corp is now trying to reclaim the costs from the owner of this unit. The owner of this unit has now applied to VCAT saying they have 'leased' this land but b/c it still 'belongs' to the B/Corp they therefore shouldn't have to foot the whole bill.

Can anyone shed any light on who is in the right here?

If things don't go the B/Corp's way, (retaliatory i know:p), would it be possible to rip out the fence, put a BBQ in this area & have everyone be able to use it?

Thanks for your advice :)
Click to expand...

In my strata it;'s quite clear and simple.

Eveyrone has a courtyard. Courtyards are common propoerty but exclusive use. It would be stupid for me to walk into your courtyard and say I have a right to stand here so nobody does it.

One courtyard has a plam tree and it needs to be removed due to ripping up pavers - we all pay for it.

The tree in the courtyard nextdoor to mine was removed due to the same thing (now it does not drop dead leavess all over my yard) - all owners paid for it.

Why do people complicate things - why would the b/corpaorate pay for ti, then try to ge the money back ? why get involved in the first place if it's not the body corporate's bill ?
 
Last edited:
kristaje said:
In a lighter tone....
If I were the 'tree lady', I'd probably try to negotiate with BC to 'solve their problem': pick up the bill and get the yard included in my title :p
Click to expand...

Like your solution kristaje...sounds more of a win/win for everyone.

It's sad that it's become a battle now & I think it's made us all feel she's a 'silly old biddy' which is probably not fair to her :eek:
 
jaycee said:
In my strata it;'s quite clear and simple.

Eveyrone has a comurtyard. Courtyards are common propoerty but exclusive use. It would bes tupid fr me to walk into your courtyard and say I ahve a right to stand here so nobody does it.

One courtayard ahs a plam tree and nit needs to bermeoved ude to reippin g up pavers - we all pay for it.

The tree in the courtyard nextdoor to mine was removed due to the same thing (now it does not drop dead leavess all pover my yard) - all owenrs paid for it.

Why do peopel complicate things - why would the b/corpaorate pay for ti, then try to ge tthe money back ? why get involved in the firs tpalce if it;'s not the ody corporate's bill ?
Click to expand...

Hi jaycee,

Ours is a bit different as the lower units' courtyards are actually on their title. It's just the 2 at the front that are common ground & not on title, but exclusive use.

Also, this tree will require yearly maintenance at a cost of $1800...every year.

B/Corp paid for it so the damage wouldn't be allowed to worsen if the dispute wasn't resolved in a timely fashion (as it hasn't been). They felt it was better to fix the problem immediately & then try & recoup the money from the owner.
 
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