Courtyards and car spaces – Do you have the legal right to use them?
A lot of apartment and unit owners have spaces which they have as their private garden or use for parking their car. Sometimes this space is built over (i.e. with a carport) or enclosed by fencing to provide exclusive use that that particular lot owner. However, in a lot of cases, that space is actually common property and not within the persons private lot. The question remains to be asked- What is the person’s legal right to occupy that space?
Owners Corporations may lease or licence common property to lot owners (or other third parties) in accordance with Section 14 of the Owners Corporations Act 2006.
But sometimes leases or licences were never obtained or were obtained by a prior owner and never assigned.
A lot owner has no exclusive right to occupy exclusively any part of common property unless there is a valid and binding licence or lease of that space supported by a formal written lease/licence which has been approved by a valid resolution of the Owners Corporation.
Owners Corporations can only agree to lease or licence common property spaces through passing a special resolution which means that a committee does not have the power to grant a lease or licence.
Too often we see lot owners making claims to common property because the land was advertised as part of the sale of the private lot. However, this will not save the use. A lease or licence must be obtained.
In addition, the Model Rules prohibit any private lot owner using any part of common property as part of their private garden (unless a lease or licence has been granted).
As expert Owners Corporations Lawyers we have extensive experience in drafting leases and licences for Owners Corporations and providing binding resolution wording at fixed fees.
We can ensure that the parties rights are properly documented and the other lot owner’s interests (through the Owners Corporation) are protected.
Need Advice or assistance?
Phillip Leaman, principal of the Owners Corporations practice group of Tisher Liner FC Law and his very experienced team can provide assistance to owners corporations, committees, lot owners and managers in a range of owners corporations legal matters. We have substantial experience advising Owners Corporations on dealing with drafting, reviewing and enforcing leases and licences in respect to common property.
We believe Owners Corporations want to maintain peaceful, functional living environments for owners. Our mission is to provide a fresh perspective on resolving legal disputes and to inspire Owners Corporations to achieve outcomes that preserves the value of assets and restores harmony. We are expert Owners Corporations lawyers.
For advice or assistance, please contact owners corporations lawyer Phillip Leaman on 03 8600 9314 or by email [email protected].
