April 29, 2020 at 3:05 pm #227881StrataSpeakMember
There is a wall that has been built on the boundary of the carspace (This wall would be lot owner property as it is within the carpsace) and effectively makes the carspace semi-enclosed.
We believe that this carspace was built during the construction of the building and it may be part of the sales contract with the lot owner which is yet to be confirmed (we have not received any responses).
The strata committee would like to request the owner to remove these walls that have been built as it is not in keeping with the rest of the carpark, it is creating a precedent that owners can request to enclose their carspace and the owner is using their carspace as a “mancave” (which we are currently taking steps to remove items stored in their carspace in accordance with the by-laws).
There are no plans or as-builts that state that the wall was part of the original construction nor any by-laws which allow the construction of such wall.
Does the committee have any standing to request the owner to remove the wall?May 6, 2020 at 8:45 pm #228510Amanda FarmerExpert
Ok StrataSpeak, I have sat on this one long enough!
My summary view:
1. The wall is not common property
2. The wall has been constructed on the lot without approval. It required approval as an addition to the common property (also impacting external appearance…)
3. The case law tells us that an OC can, in exercising its function to ‘maintain’ the common property – remove illegal additions to the CP.
4. Here’s a ‘cut and paste’ from a recent advice I gave a client on this point:
“In The Owners – Strata Plan 21702 v Krimbogiannis  NSWCA 411 (5 December 2014) the NSW Court of Appeal considered whether the obligation to “maintain” the common property extends to an obligation to remove an unauthorised addition to the common property.
The Court of Appeal found that an owners corporation’s obligation to maintain the common property does extend to the removal of unauthorised additions and the owners corporation in that case had the right to enter a lot to remove an illegally installed glass sliding door.
On the authority of the Krimbogiannis case, it is my view that the Owners Corporation may (and, indeed, probably should) remove the illegally installed ###. In doing so, it is meeting its legal obligation to maintain the common property.
The Owners Corporation is also able to direct the lot owners in question to remove the illegal installations. The lot owners are bound to comply with that direction.
To the extent the Owners Corporation’s contractors may need access to a lot in order to remove the illegal ##, the lot occupier is obliged to provide that access under section 122 of the 2015 Act.
As this is work “required to be carried out by the owners corporation in accordance with” the Act, in my view the Owners Corporation has the power to enter the lot in order to carry out that work.
Consent to access should be sought from the occupier under section 122(4). If the occupier does not provide their consent, the Owners Corporation can seek an access order from the Tribunal under section 124.
In seeking consent from occupiers, it may be helpful for the Owners Corporation to point out that:
(a) the Owners Corporation has a legal right, indeed obligation, to access the lot for the purpose of maintaining the common property; and
(b) if consent is not provided, the Owners Corporation has recourse to the Tribunal.
Let me know what you think, StrataSpeak 🙂
Amanda.June 5, 2020 at 8:51 am #230532EllenMember
I have an issue similar to the forum topic “Wall Built to Enclose Carspace” regarding a fence/gate installed by a lot owner to enclose his ‘licenced’ car space into a private courtyard, he also removed a window, window grates and installed French doors – all without approval. This area of common property also houses a gas hot water unit belonging to another lot owner.
After obtaining legal opinion on ‘licenced’ car space and addition of structures, the OC issued a breach notice to the lot owner to remove the fence, otherwise, the OC would do so. The lot owner then commenced VCAT action to prevent the OC from removing the fence.
After a considerable time with numerous correspondence back & forth, an agreement was reached at mediation in which the OC conceded was more than favourable to the lot owner. The lot owner (the claimant) agreed (at his expense) to move the fence to align with the rear wall instead of protruding, and relocate the DOHS hot water unit from its current enclosed position to an agreed location of common property. A Deed of Settlement was finalised and legal fees were covered up to the point the matter progressed towards settlement between the OC and the claimant.
However, the claimant has refused to sign the Deed, initially claiming he needed more time to obtain quotes, etc (March’19), this was granted. He then questioned his component of the costs; these costs were shown to be valid. He then raised another matter at VCAT about not having access to ‘privileged’ legal information about the matter, then requested that the two matters be combined; which was refused. He then withdrew the second matter (July’19). The OC sought legal advice on the next steps. In the meantime, our legal rep has sold the practice. This has been a long drawn out issue.
The OC Committee is now at the stage where we’re waiting to see whether the insurer will cover additional legal costs.
Our new legal rep has provided options which I’ve summarised below:
A. Legal correspondence with the claimant to determine if he accepts the Deed as is, mediate to negotiate settlement, possible compulsory conference.
(Our concern is that even if he does end up signing the Deed, how will it be enforced? Based on prior history, he’ll refuse. Can the OC relocate the fence & hot water unit and on-charge the costs to him?)
B. Letter of Demand issued to claimant directing him to remove the fence within X days, stipulating that OC will remove the fence if he does not. (Which sounds like we are back to square one).
As the claimant has refused to sign the Deed should our course of action be to return to our original intention of removing the fence? Can the OC on-charge for the removal costs?
Could there be potential legal consequences if the OC removed the fence? Could the owner claim damages?
Given we have already been down the VCAT path, I would really appreciate your opinion and advice on these options and what would be the best approach, or if there is another solution.
EllenJune 15, 2020 at 6:04 pm #231196Amanda FarmerExpert
My apologies for this delayed response. I did actually answer you last week, but it seems my post went into the ether, never to be seen again. So here goes again:
I understand you’re in VIC, so please read the below on the understanding that I am not a VIC practitioner and am not across the intricacies of VIC strata law.
Having said that, I can give some practical guidance:
The lesson learned here (which many lawyers have learned the hard way) is that the deal is not DONE until the document is signed. I do my best to make sure a settlement document of some form is signed before everyone leaves the negotiating table. Feelings change the next day.
If the Deed was signed and the owner then failed to comply with a promise made in the Deed, you could seek a court order for specific performance. Of course, you don’t want to be embroiled in further litigation. That’s why it’s always a good idea to incorporate ‘fall back’ provisions in settlement documents, as best you can. So, you set out what is to happen if a party does not meet its obligation. In the case of this dispute, it would be a good idea to incorporate a clause permitting the Owners Corporation to carry out the work if the owner failed to do so within a set period of time, including giving the Owners Corporation the right to enter on lot property to do whatever was required and the right to charge the costs to the owner’s account. I am not sure if the Deed proposed in your case covered that. Future settlement documents should.
I don’t blame you for being reluctant to mediate with this person again. I agree it is likely a waste of time, when all they want to do is drag this out while they enjoy their makeshift courtyard.
If VIC law in this area is anything like NSW law (and I don’t know if it is), in meeting its duty to maintain the common property the Owners Corporation can remove illegally installed additions (see my comments in response to StrataSpeak above). If your VIC strata lawyer can give you this confirmation, then it would seem to me the most straightforward approach is to give reasonable notice that you are dismantling and removing the installation and proceed to do so. In NSW, there is provision in our law to also recover the costs of that exercise (again, see above). I don’t know if the same applies in VIC.
I agree that you don’t want to be going back to square 1: this person has shown their true colours. A different approach is required. Just check with your representative that the approach you choose is justifiable, under VIC strata law.
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