These questions are about exclusive use or special privileges bylaws in WA.
Table of Contents:
- QUESTION: Our building has a discrepancy regarding whether our balconies and carports are a part lot or exclusive use. If a by-law contradicts the strata plan, which one is correct?
- QUESTION: If we consolidate our by-laws detailing exclusive use areas and common areas, do we also need to formalise licence agreements for exclusive use areas by arranging a new strata plan?
- QUESTION: The developer has the use of a storeroom in the building for materials until all units are sold and outstanding defects have been dealt with. Is this ‘industry standard’? Either way, would it be reasonable to expect the developer to pay (rent) for this exclusive use?
- QUESTION: A planter box, installed by a previous owner in our exclusive use courtyard, is causing water damage and must be removed at our cost. Why is it our cost to remove the planter box?
Question: Our building has a discrepancy regarding whether our balconies and carports are a part lot or exclusive use. If a by-law contradicts the strata plan, which one is correct?
In our building, the strata plan states the balconies and carports are a part of the lot, the boundaries of which are defined on the strata plan.
Our strata manager refuses to accept this and has issued a notice to say the balconies and carports are exclusive use common property.
Landgate have confirmed that they are part lot.
The CoO refuse to acknowledge the facts.
It appears that owners must go to SAT and bear some costs to have this determined.
If a by-law contradicts the strata plan, which one is correct?
Answer: The STA can not be overwritten by a by-law.
If there are part lots shown as “Pt” then they are owned. I have nothing to go on with the details of the by-law and how it may contradict the STA.
I do know that you can’t grant exclusive use of a part lot, as it is private property. External use of a part lot could be done by a lease.
It would be best to lodge an application at the State Administrative Tribunal to get a determination.
The STA can not be overwritten by a by-law.
Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au
This post appears in the December 2024 edition of The WA Strata Magazine.
Question: If we consolidate our by-laws detailing exclusive use areas and common areas, do we also need to formalise licence agreements for exclusive use areas by arranging a new strata plan?
At our AGM, our strata management company advised residents that it would be a good idea to formalise a licence agreement for our complex’s exclusive use areas and common areas. The managers have also advised us to survey a new strata plan. Is this mandatory?
Soon, we will consolidate our by-laws, detailing exclusive use and common areas. Do we need to carry out these additional steps?
Answer: An exclusive use by-law for an area of common property (or Special Lot) is mostly defined by an accurate drawing with dimensions done by a Surveyor for that purpose.
From the information provided, I can only assume your strata scheme has no pre-existing by-laws for exclusive use.
Exclusive Use
Exclusive use can confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme.
The requirements are stated in the Strata Titles Act 1985 (STA) in – section 43 Exclusive use by-laws.
43. Exclusive use by-laws
- Exclusive use by-laws of a strata titles scheme are scheme by-laws that confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme or specified common property in the strata titles scheme (the special common property) on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (the special lots).
- Exclusive use by-laws may include the following —
- terms and conditions on which the occupiers of special lots may use the special common property;
- particulars relating to access to the special common property and the provision and keeping of any key necessary;
- particulars of the hours during which the special common property may be used;
- provisions relating to the condition, maintenance, repair, renewal or replacement of the special common property;
- provisions relating to insurance of the special common property to be maintained by the owners of special lots;
- matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.
- Subject to the terms of exclusive use by-laws, the obligations that would, apart from this subsection, fall on the strata company under section 91(1)(c) in relation to the special common property fall instead on the owners of the special lots.
- An amount payable by a person to a strata company under exclusive use by-laws must be paid (together with interest on any outstanding amount) and may be recovered by the strata company, as if the amount payable were an unpaid contribution levied on the person as a member of the strata company.
- Exclusive use by-laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by-laws.
Section 43 refers to the exclusive use areas as “Special Lots”.
An exclusive use by-law for an area of common property (or Special Lot) is mostly defined by an accurate drawing with dimensions done by a Surveyor for that purpose.
A by-law for Exclusive Use is a “Governance” by-law and must be passed by a “Resolution Without Dissent”.
See section 3(1) STA alphabetical listing for governance by-laws (b)(iv).
See section 123 STA for requirements for a Resolution Without Dissent (RWD).
A by-law for exclusive use is made by RWD and can only be varied, added to or removed by RWD.
It is, therefore, possible that exclusive use by-laws can become permanent as a by-law must be registered at Landgate.
Exclusive use is only one way that the allocation of common property can be managed.
LICENSE
Your strata management company has mentioned a “Licence Agreement” for exclusive use of some areas and common property.
See STA at section 26 shows that a “Licence” can be created
26. Long term lease or licence over common property
A lease or licence, or lease and licence, to use or occupy the common property or part of the common property in a strata titles scheme for a term or terms exceeding the period specified in the regulations in aggregate (including any option to extend or renew the term of a lease or licence) is not effective unless it has been approved in writing by the local government of the district in which the parcel is situated.
A Licence is not registered at Landgate
A Licence may contain terms or conditions that have the power to terminate the agreement if the licensee fails to adhere to the conditions contained within.
The strata company would need to maintain a separate register of any Licenses that have been granted.
The STA is silent about the standard of resolution required to approve a Lease or Licence, or maybe I wasn’t able to find the reference.
The former STA required a RWD under section 19.
Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au
This post appears in Strata News #699.
Question: The developer has the use of a storeroom in the building for materials until all units are sold and outstanding defects have been dealt with. Is this ‘industry standard’? Either way, would it be reasonable to expect the developer to pay (rent) for this exclusive use?
Answer: Unless you have a specific bylaw, this area would be common property for the benefit of all owners.
Is it industry standard that this happens – yes. Is it industry standard that it should happen? – probably not.
Unless you have a specific bylaw, this area would be common property for the benefit of all owners. A benefit of all owners might be debated, as storage of paint and spare tiles throughout a defect period within reason. However it should be at the verdict of the strata council. This may involve the council wishing to charge rent for said area, which I wouldn’t think is unreasonable.
Keep in mind that this information is generic and doesn’t take into account your property’s specific bylaws which may entail other information.
Jordan Dinga
Abode Strata
E: abode@abodestrata.com.au
P: 08 9368 2221
This post appears in Strata News #641.
Question: A planter box, installed by a previous owner in our exclusive use courtyard, is causing water damage and must be removed at our cost. Why is it our cost to remove the planter box?
I have a residential strata ground floor lot. Our strata manager has advised us to remove a planter box in our exclusive use courtyard, at our expense. The planter box is causing water damage to the undercroft car park area.
I thought my courtyard was part of the common property. The planter box was erected years ago by a previous owner. Why is the removal of the planter box our cost?
Answer: Your strata scheme is highly likely to have a registered by-law that denotes who is responsible for maintaining items in an exclusive use space.
In regards to the planter box in the exclusive use area, you will find your strata scheme is highly likely to have a registered by-law that denotes who is responsible for the maintenance of items in an exclusive use space. You need to access and check if there is an exclusive use by-law that will specify rights / responsibilities of the lot owner regarding the usage of the exclusive use space.
If the planter box is causing water damage to the undercroft, the strata company has power to enforce its removal / maintenance. Regardless of the planter box being erected by a previous owner, the responsibility as the current lot owner passes to you.
Jamie Horner
Empire Estate Agents
E: JHorner@empireestateagents.com
P: (08) 9262 0400
This post appears in the March 2023 edition of The WA Strata Magazine.
Have a question or something to add to the article? Leave a comment below.
This information is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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Is it possible for the lot owner to give exclusive use of some of their property to the strata company, under this section? This can be for maintenance reasons of joint electrical and pillars etc.
Or does section 42 only apply giving exclusive use from the strata company (common area) to the lot owner? Thanks
Hi
This Q&A should assist: Question: One lot’s balcony houses the electricity meters for the building. They want to fully enclose this area. What is the position on this for both the owner and for future access to the electricity meters?
The leach drains in my exclusive use area, which are the responsibility of the strata company as noted in the by-law, have failed and I have been warned by the City of Xxx I may now receive a notice to vacate the premises as they could be deemed uninhabitable. The strata company has no budget for leach drain maintenance and repairs and has been dragging its feet for months and months addressing the issue. Could the strata company be liable for my costs arising from the notice?
Hi there
If a strata lot have front and rear court yards and is exclusice Use who is responsible to pay for the removeal of the planter box and garden beds adjacent to the unit if the strat vote to remove them due to water leagage.
These items were erected yaer ago by a previous owner
regards
Brett
I was interested to know the answer to this question please.
If a by-law for exclusive use is passed at the AGM does this then entitle the owner to have permission to build a patio’s etc within the exclusive use property,
If permission has been sought from the relevant council and strata company and approved – does it change the unit entitlement?
Hi Jenny
The following resppnse has been provided by Shane White, STRATA TITLE CONSULT:
A by-law for exclusive use allows the owner to use an area exclusively.
Depending on the terms and conditions of the by-law there may also be conditions to maintain, repair, replace, keep clean or pay a fee.
An exclusive use by-law doesn’t include permission to erect a structure or carry out structural alterations unless they were part of a pre-approval in the by-law.
There are various requirements in the Act and Regulations for applying to the strata company for approval to do a structural alteration.
Primarily the approval of the strata company, if building approval is also required then from the Local Council.
There are a number of different paths that could be followed:
Does the patio come under an improvement to the common property? Self funded by the owner?
Does the patio come under a sustainability infrastructure contract.
The proposal to erect a patio on the common property exclusive use area should have been presented with plans to the strata company.
Will the erection of the structure compromise the insurance policy? Is the insurer aware?
Who will maintain the patio afterwards?
The erecting of the patio on common property will not change the Unit Entitlement (UE) values unless a re-subdivision was done to include the area of common property into the Lot. Otherwise, the UE values will remain the same.
A situation has occurred at an 8 story 26 unit strata complex (1977 strata) where a number of owners have experienced problems with windows (bedroom x 2) and windows and sliding doors to balcony, probably up to 16 owners. I have been told that under the strata plan a lot owner only owns the internal space and all walls, floors, ceilings and windows are common property. I am told that the Act states that the strata company must maintain, replace, renew etc all common property. Furthermore, I am told, that you cannot make a bylaw that conflicts with any section of the Act. I can see possible problems arising if a large number of owners were to “go their own way” with this matter.
If Owners have already built patios over previous years on the common property, is the option to approve these additions is pass a by-law of exclusive use.
If a by-law for exclusive use is passed at the AGM does this then entitle the owner to have permission to build a patio’s etc within the exclusive use property,
Hi Glenda,
Thanks for emailing us outside of this forum. I have replied there as this one is a bit complex!
This was a very useful article, thank you.
If someone wanted to remove an exclusive us by-law, what would be required?
Thanks Sam! It would essentially be the exact same process!
Our strata was built in stages – the first stage was a tower sold by the developer to a sister company which leases most of it to a subsidiary entity (a hotel). The first AGM minutes show only the developer and owner of stage 1 existed and they created a bylaw that established a large special use area. Neither the owner of the lot or its tenant maintain this area although required to. The affiliated entities own more than 50% of UE and would out voted the other owners if we tried to sanction them in some way although it never gets to that point because the council is indebted to them and avoids dealing with the issue. Suggestions?
If there is no vote without decent if anybody votes no then a exclusive use bylaw isn’t passed is that correct?
Hi Ken
We have received the following response back from Elizabeth Florence, Abode Strata Management:
Correct, as noted within my response above:
To pass a by-law relating to exclusive use and/or special privileges in a two-lot scheme a unanimous resolution is required and in any other scheme, a resolution without dissent is required.
If this bylaw has been added to the landgate plans by the strata manager & the units that benefit from it 31 out of 100 , they have just wasted our strata money as this is not valid correct