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Fenced off common property

By Cal S on Sun, 26 Feb 2012 at 18:40

Our complex was developed 14 years ago. The complex has a combination of single and double story blocks. No section occupies both floors, so double story blocks have units arranged on top of each other.
When the developer's estate agent sold the property, they were sold as upstairs and garden units. Owners who bought "garden units" believe they purchased these gardens.
Also, units were sold with parking bays, a combination of covered and open bays. Some units had the option to replace the carport with a garage. Two units exercised this right with the developer.
I have a copy of the sale contract for an upstairs unit, which shows that the unit was sold with parking bays included in the contract, but I cannot confirm what the contract read for ground floor "garden units".
A deed search reveals that no parking bays or gardens have been registered against the units in any legal format, other than the two garages that have been registered as exclusive use areas (the only two such registrations in the complex).
A peculiarity is that despite the bays not being registered, they are numbered, and for 14 years owners have generally respected the numbers as being an indication of ownership, other than the BC being responsible for all maintenance. In some cases, bays which were not initially covered have been covered by owners, costs for their account, but all subsequent maintenance has fallen on the body corporate.
Another peculiarity is that the gardens around ground floor units have a combination of walls and picket fences surrounding them. Again, for 14 years owners have generally respected that these are exclusive use areas and treated them as such, other than the responsibility to cover all costs. The BC employs a garden service which looks after the lawns, mowing and trimming them weekly and at times trimming trees and bushes when they cause problems, but unless a unit is badly neglected, no other work is done.
I have two questions relating to this:
1. given that the gardens are common property, what is the legal standpoint regarding the fencing off of these areas effectively limiting access to them to other owners?
2. Costs relating to the maintenance of EUAs is the responsibility of the beneficiary of the EUA. Since the act describes medians only in the case of a section, does this mean that the entire structure of the garage in our case, including walls, roof, windows and door are the responsibility of the beneficiary? Insurance premiums on these structures would also be for their account, and they would be responsible for advising the trustees of the value to which they want cover extended?

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RE: Fenced off common property

Thomas Groenewald replied on Sun, 26 Feb 2012 at 21:46

The issue is not as simple as the two questions posed. If sales agreements state exclusive use parking and or gardens then a number of owners probably have a legal case.
Does the scheme's management rules include anything about allocation of EUAs? The developer may have registered the EUAs in this way?

RE: RE: Fenced off common property

John Yates replied on Mon, 27 Feb 2012 at 07:22

EUA's are only established in two ways. Either in terms of Section 27 or 27A. There is no provision in the S/T Act for de facto EUA's. A sales agreement would not be valid in this respect, if it did not relate to either of these two ways. The Deed of Transfer would also indicate precisely what the buyer has bought. The Sectional Plan would indicate a Section 27 EUA if it had been created in this manner.

RE: Fenced off common property

Cal S replied on Tue, 28 Feb 2012 at 12:57

No EUA registrations exist either by title or by rule.

RE: Fenced off common property

Peter Vickery replied on Tue, 28 Feb 2012 at 14:11

Hi Cal - developers often go the easiest route when a complex is complete offering all sorts of incentives to the purchasers and often leaving a mess for the BC to sort out some time in the future. Unscrupulous estate agents are often complicit, seeing expediency as the route to a quick commission.
It looks as the only way you're going to get this one sorted out is to go thru' all the legal hoops. Maybe to get the ball rolling you should put this on the agenda at your next AGM and take it from there?

Regards...Show More

RE: Fenced off common property

Cal S replied on Thu, 01 Mar 2012 at 13:18

Thanks Peter,

That is our plan, but we are wanting to try to address this in one meeting, rather than have excessive carry over.
One of the primary questions needing answered in that forum is who would be responsible for the picket fence maintenance should it be agreed to adopt EUA rules for gardens. Is the picket fence part of the EUA (being the boundary marker), since without the EUA no fence would be required, or, possibly more specifically, create barriers which are contrary to the letter and spirit of the Sectional Titles Act that no one may interfere with another owner's enjoyment of the common property. A fence limiting their access certainly does that.
What case studies exist for dealing with barriers not installed by owners that limit or restrict the general use and enjoyment of common property by all owners?

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