Strata FAQ: Annexing Common Property


Welcome to a new feature in your SSKB Committee Newsletter.

Each edition we will be taking a frequently asked question received by our community managers and share them with you. This is part of our commitment to providing education and support for Body Corporate and Owners Corporation committees across Australia.

If you have a question that you’d like to see featured here, then let your community manager know. We’d love to hear from you.

Question:
I live in a villa complex. One of our residents has replaced his boundary fence and extended his fence line onto common property to make his backyard bigger.

At our last AGM this owner asked permission to erect a small concrete slab against his villa to put an air-conditioning unit on. This was agreed to as long as he put up a fence to hide the unit.

He is now saying that he was given permission to erect the fence as it is hiding his air conditioning unit!

We have contacted Fair Trading and they say we have given him permission to erect the fence and we can do nothing about it. He has taken approximately 30 square metres of common property!

What can we do?

Answer:
While the lot owner may have been given permission to erect a fence, there was no permission granted to build it on common property.

To build the fence in the first place, the owner would need to receive permission from the Body Corporate/Owners Corporation by way of a special resolution at a general meeting.

And to ensure the legality of the fence enclosing common property, a Special Resolution would need to be passed to grant permission for this exclusive use to take place.

As general advice in this instance, SSKB recommends that the Body Corporate/Owners Corporation notify the lot owner of the breach of the by-laws. If the owner does not comply the matter should be discussed with a lawyer and the matter taken up with your state’s Civil & Administrative Tribunal.

  • Queensland – QCAT
  • Victoria – VCAT
  • New South Wales – NCAT


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