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.
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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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