July 23, 2020 at 10:22 am #233565FlotsamMember
Were I preparing a new by-law today to give exclusive use to a lot owner, I would ensure that it covers topics such as indemnities to the owners corporation as well as ongoing repair and maintenance obligations. For obvious reasons, this seems prudent.
However, one of my buildings possesses an Exclusive Use By-Law dated 1990-1995, and makes no reference to such things.
The Proprietors for the time being, their successors, transferees, assigns, lessees or licensees of Lots 1 to X inclusive in Strata Plan XXXXX shall have the right of the exclusive use and enjoyment of that area of common property adjacent to those lots shown by letters “A” through “X” inclusive, on the Plan (etc), for the purpose of using the relevant areas as a courtyard and, for this purpose, to demolish part of the existing balcony to enable access to this exclusive use area.
No surprise that the passage of time has meant a need for repairs to these areas.
Who is responsible for these repairs? Was there an implicit assumption that lot owners taking exclusive use would be responsible for repairs and maintenance under old legislation (since this is a 1990-1995 by-law)? Was this superseded in new legislation? Or has the owners corporation always been responsible in the absence of anything to specify otherwise? Etc, etc.
PS: I know the year in which the by-law was registered. But in an attempt to respect the forum rules of anonymity, I have provided a date range. If this affects the answer, I could be more specific.July 28, 2020 at 10:57 am #234014Amanda FarmerExpert
As long as it was registered pre 1997, this by-law would have been made under the Strata Titles Act 1973.
Section 58 of this Act permitted grants of exclusive use by unanimous resolution.
Section 58 also said that “unless excused by the by-law” the owner with the benefit of the exclusive use is responsible for the repair and maintenance of the common property “to which the by-law relates”
The validity of a by-law made under earlier legislation has been carried through via the transitional provisions of our 1996, then 2015 Acts.
So…even though your by-law doesn’t say it, the owners are responsible for the repair and maintenance of the affected common property.
This is interesting because a common property rights by-law made today – under our 2015 Act – must set out who has the ongoing maintenance responsibility, or it’s invalid. And, for work carried out under a section 108 approval, if the special resolution does not set out who is responsible for the affected common property, then the Owners Corporation remains responsible.
Quite different to the earlier regime.
Amanda.July 28, 2020 at 3:22 pm #234058FlotsamMember
I find this very interesting! Thanks Amanda.
Thinking through the possibilities, I have a follow-up question. Suppose your exclusive use area is access to a concrete slab to use as a “patio area”. In the absence of specifics in the by-law, is the owner’s area of responsibility then the air space above the slab, and any fixtures or fittings? Or also the surface of that slab? If that concrete slab takes spalling damage to the surface (potentially the only exposed area), would this mean that the owner with exclusive use was responsible for the spalling repair?
If the answer is “yes”, this feels like it throws up a situation that is ‘unintended’ because, in contrast, I do not believe an owner would be responsible for spalling damage to the slab surface of a concrete balcony that formed part of their lot (assuming the lot space would typically begin from the upper surface of that slab).August 2, 2020 at 5:09 pm #234555Amanda FarmerExpert
Your example points out the problem with the earlier legislation: what does “the common property to which the by-law relates” mean?
You’d have to look carefully at the terms of the specific by-law you were interpreting, as well as the particular features of the area it covered. A by-law for the exclusive of a “rooftop deck” for example would arguably transfer the responsibility to maintain and repair the deck (under the 1973 Act), because it specifically mentions the deck and not the ‘space’ or ‘area’.
A by-law for the exclusive use of ‘the courtyard area’ is, in my view, harder to interpret. An owners corporation involved in that kind of debate would do well to weigh the cost of fixing that part of the common property against the cost of litigation arguing the point with an intractable owner
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