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No Right to Access Strata Apartment – How to Resolve

16/02/2022

There are many circumstances of Strata Lots being sold with particular legal issues that affect the Owner’s rights and obligations.  We mention below two in which we recently advised the affected Owners.

No Legal Access Right to a Strata Apartment

Recently our client who had purchased and owned a Strata apartment for some time approached us in relation to the issues that arose as to her entitlement to access to her apartment. 

The apartments in the strata complex were a reconfiguration of a pre-existing building which had been converted into separate Strata apartments in October 1978.

The only physical access to the apartment was via a bridge from the street to a balcony. 

There were two apartments on that level and each were accessed via the bridge and the balcony.  This access had been utilised for many years since October 1978 without any issues.  The difficulty arose when the current owner of the adjacent apartment pointed out that the balcony was part of the Lot of the adjacent apartment. 

One could not ascertain this merely by looking at the Strata Plan.  However once we looked at the Strata Plan and the physical access to the apartment, it was clear that the physical access was in fact, via the balcony which formed part of the Lot of the adjacent apartment. 

We advised that a possible resolution was to seek an Easement from the neighbour for access via the neighbour’s Lot.  We advised of the many difficulties and costs associated with obtaining an Easement.

We also considered other alternatives for example, whether access could be gained to our client’s apartment by way of additional works to enable access via the common property.  There was available a possible alternative for such access however, it would require significant works, dealing with the Owners Corporation in relation to such access and issues as to the question of who pays for the cost of the works and other associated costs.

With the above knowledge on behalf of our client, we negotiated with the Owner of the adjacent apartment for an Easement to allow our client legal access via the balcony.

Following negotiations, the Owner of the adjacent apartment granted an Easement for access and the matter was resolved. 

This had been an issue since converting the old building into separate strata apartments and registration of the Strata Plan in October 1978.  It is unfortunate that the problem was not ascertained at the time of the proposed purchase.  It was important for our client to resolve the issue. 

The resolution has enabled our client to be satisfied that if she proposed to sell the apartment, the purchaser will have legal access to the apartment. 

A part of the lot being utilised by the Owners Corporation for “common services”

Recently we received instructions from the Owner of a Strata Unit.  The purchaser of the home unit only became aware of the issue after purchasing the Lot. 

When one looked at the Strata Plan, it was clear that a storeroom (which is physically separated from the home unit on a different level) is part of the Lot.  When one inspected the storeroom being part of the Lot, it was clear that the storeroom was being utilised by the Owners Corporation to house the services for the strata complex.  Those services include electrical services for the strata complex.

This may have consequences for the Owners Corporation and the Lot Owner having regard to responsibility for issues that may arise within this storeroom (which is part of the Lot).

The Lot Owner could be embroiled in long and costly dispute with the Owners Corporation if either a disaster occurred or the issue arises and it was not resolved by agreement,

The matter was resolved by negotiation which covered principally two matters:

1.       Firstly, a By-Law to allow the Lot Owner to have exclusive use to a separate storeroom to be constructed on another part of the common property.  This also comes with the usual problems that arise with indemnities in relation to exclusive use.

2.       Secondly, the Owners Corporation was granted a licence to use the existing storeroom owned by the Lot in which the services were housed with the Owners Corporation taking over all responsibilities.  There were numerous conditions attached.

It is critical that the documentation covers in particular, each of the parties’ responsibilities and liabilities and protection of them including appropriate insurance.

If you are proposing to purchase a Lot within a strata complex, ensure that you are aware of exactly what your Strata Lot is comprised of.  Also review the By Laws, some of which may apply specifically to the Lot which you propose to purchase.

At Watson & Watson our experienced Strata Lawyers can assist you in all matters pertaining to strata complexes whether they are residential or commercial.  Please contact Richard Watson, Senior Strata Lawyer and Accredited Specialist in Commercial Litigation specialising in the building and construction stream or by contacting his Personal Assistance Shereen DaGloria to discuss your important matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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