Introduction
For lot owners in a strata scheme, securing exclusive use of certain common property areas, such as attic spaces, courtyards, or car spaces, requires a common property rights by-law. This by-law grants a specific lot owner the right to use and, in some cases, modify an area of common property that would otherwise be shared by all owners.
Getting exclusive use can be a game-changer. More storage. More privacy. A guaranteed car spot. But it’s not automatic. There’s a process. Legalities. Planning rules. And most importantly? You need approval from the owners corporation.
Common Property Rights By-Laws
A common property rights by-law allows a lot owner to:
- Have exclusive use of an area that is otherwise part of the common property, and/or
- Make alterations or improvements to that area, subject to conditions.
Unlike some other strata decisions that require only a simple majority, a common property rights by-law must be approved by a special resolution at a general meeting. This means at least 75 percent of votes must be in favour, and no more than 25 percent can be against it.
Areas that are commonly subject to exclusive use by-laws include:
- Attic spaces – Converting roof voids into storage or habitable rooms.
- Courtyards – Installing decking, landscaping, or privacy screens.
- Car spaces – Allocating parking spaces that are currently common property.
A badly written by-law is a nightmare waiting to happen. It leads to confusion, disputes, and legal battles. If it doesn’t clearly say who’s responsible for maintenance and repairs, you could end up in a messy fight over costs when something goes wrong.
A solid by-law should:
- Clearly mark out boundaries of the exclusive use area.
- Specify who maintains and repairs it (usually the benefiting lot owner).
- Be legally sound and properly registered with NSW Land Registry Services.
Bottom line? Get a strata lawyer to draft it properly. You don’t want to deal with legal headaches later.
Development Approval and Compliance with Existing DA Conditions
In some cases, making alterations or additions to an exclusive use area, such as enclosing an attic, building a pergola in a courtyard, or converting a common property area into a car space, may require development approval (DA) from the local council.
Additionally, if the building was originally approved with specific DA conditions, for example, requiring a minimum number of common property visitor car parking spaces, a minimum number of disability car spaces or requiring a car wash bay area on common property, those conditions must be reviewed before a by-law granting exclusive use is proposed over such areas, which could be inconsistent or conflict with the DA requirements. If necessary, an application to council to modify the existing. DA conditions may be required to ensure compliance.
For instance:
- If a strata scheme was originally approved with 3 common property visitor car parking spaces, using a common property visitor parking space for exclusive use parking may require a DA modification.
- Some councils restrict attic conversions to non-habitable storage only, meaning DA approval may be needed for any major works in the attic space.
Before proceeding with any major works, lot owners should obtain professional advice from a strata lawyer, a town planner or council to determine whether approvals are required.
Valuation
If an exclusive use area increases the value of a particular lot, it may be necessary to review whether the owners corporations may seek financial compensation in exchange for granting exclusive use rights. Obtaining a valuation report from a registered valuer on exclusive use can assist in assessing the financial implications before the by-law is proposed.
Owners Corporation Approval and Special Resolution Vote
Since a special resolution is required to pass a common property rights by-law granting exclusive use, gaining support from other owners is crucial. In some cases, opposition may arise due to concerns about fairness, impact on common property, or the potential for similar requests in the future.
To improve the chances of approval:
- Engage with other owners early by clearly explaining why the by-law is being proposed and address any concerns upfront.
- Demonstrate minimal impact by providing evidence that the proposed changes will not negatively affect other owners.
- Be prepared for negotiation, as some owners corporations may request a financial contribution before approving the by-law.
Seeking legal advice can assist in preparing a well-documented proposal that strengthens the case for approval.
Steps to Obtain a Common Property Rights By-law for Exclusive Use
1. Engage a strata lawyer to draft the motion and by-law to ensure it is legally sound.
2. Obtain professional advice from planners, valuers, or engineers if required.
3. Check whether development approval is needed before undertaking any works.
4. Propose the by-law at a general meeting and secure a special resolution vote.
5. Register the by-law with NSW Land Registry Services within 6months of approval.
Conclusion
Securing exclusive use of an attic, courtyard, or car space through a common property rights by-law can provide certainty and add value to a lot. However, the process involves legal, planning, and financial considerations that must be carefully managed.
By seeking advice from strata lawyers, town planners, and valuers, lot owners can navigate the process smoothly and improve the likelihood of approval.
For expert legal guidance on drafting and securing a common property rights by-law granting exclusive use of attic spaces, courtyards and car spaces, contact Pobi Lawyers on 02 8324 7565. Our team specialises in strata law and can help you ensure compliance while protecting your interests.
Disclaimer
This article was published by Pobi Lawyers and the material in it is intended only as general information. This does not constitute legal advice, nor create any solicitor-client relationship. We recommend that you seek your own independent legal advice in relation to your own individual circumstances, before acting or relying on the contents of this article. Pobi Lawyers shall not be responsible for any reliance placed on this information, and its contents are liable to change at any time without notice.
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