By The Paddocks Club Team

Below are examples of two questions on the Discussion Forum on Paddocks Club. We want to show what is available to our Community Members!

Trees on common property obscuring sea view

Member’s Question:

The trustees have received requests from apartment owners to have bushes trimmed or removed, as they are obstructing their view of the ocean.

The bushes are currently bigger and fuller than the bushes that existed when these owners bought sections several years ago.

The section owner that is right next to these bushes in question, is claiming that they are enjoying the privacy that the current bushes provide and therefore would not like the bushes to be trimmed or removed.

In order to appease the affected section owners, would the trustees have to be guided by a majority vote of the affected section owners, as to what happens with the trees?

The affected section owners make up a very small portion of the entire complex.

Graham’s Answer:

No doubt this will be a hard-fought battle, with both sides motivated to keep their property values as high as possible.

The owners who want the bushes trimmed appear to have a good point. They are co-owners of the common property and the bushes are features of the garden which forms part of that common property. They could argue that by letting the bushes grow substantially bigger than they were, the trustees are in effect changing the scheme, taking away their sea view and reducing the value of their properties. Their argument is made to preserve the value of their property.

The owner who now enjoys a new-found privacy due to the increased size of the bushes seems to be on less solid ground. The basis of his claim appears to be that the trustees must not maintain the bushes at their original size because he will lose the benefit he now considers he has obtained by their increase in size. So, in effect, he is arguing to enhance the value of his property at the expense of the other owners, and asking for the trustees’ cooperation in this regard.

I suggest that the trustees should make a decision on the basis of what they believe is right in the circumstances (i.e. they must not be led by my comments; they must consider them with all the other representations made by the parties and their lawyers, then they must make up their own minds.) Having done that they should give both parties a substantial period of advance notice of their decision, inviting them to go to the High Court or declare a dispute, as they choose, if they disagree.

 

Boundary wall

Member’s Question:

There are 2 parts to this question.

1. An owner has been running a bakery business from the start of the complex (approximatley 7 years). He claims to have been given verbal permission from the developer.

He has been left to his own device but the business has now grown to a point where there are staff in the unit, vehicles coming in and traffic flow with deliveries and people picking up supplies and doing purchases. They have erected a wooden hut to manufacture the bakery goods.

How can the Trustees stop this now, what would the steps be?

2. This owner has said that he wants to put a gate on the boundary wall to the road so that deliveries etc can use that gate and not the driveway

The Trustees have told him to put it in writing but nothing so far.

Please help urgently

Carryn’s Answer:

I would start by looking into whether the scheme is a mixed scheme or whether it is purely a residential scheme. The title page of the sectional plan should have some description of the building to show this fact.

The next step would be to establish how the scheme is zoned in terms of the town planning scheme. If it is purely residential then a bakery cannot operate from the scheme.

Then you would need to establish, by looking at the sectional plan, the purpose for which that section can be used. Section 44(1)(g) of the Act states that when the purpose for which a section or an exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, an owner must not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for another purpose.

In terms of PMR 68(1)(v) adds to this by stating that an owner shall, when the purpose for which a section and exclusive use area is intended to be used,

(a) is shown expressly or by implication on a registered sectional plan;

(b) is shown expressly or by implication on the original approved building plan thereof;

(c) can be inferred from the provisions of the rules; or

(d) is obvious from its construction, layout and available amenities,not use, nor permit such section or exclusive use area to be used, for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for another purpose.

Therefore, if the purpose is shown on the plan; is inferred in the rules; by implication on the original approved building plan; or is obvious from its construction, layout and available amenities the owner cannot use it for any other purpose without the written consent of all the owners.

The owner cannot put a gate on the boundary wall. This would be a change to common property. No owner can alter the common property in this way. The body corporate could only do this of an by way of an improvement to common property in terms of PMR 33.

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Article reference: Paddocks Press: Volume 9, Issue 11, Page 5.

Professor Graham Paddock, Anton Kelly and Carryn Durham are available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Paddocks Club.

This article is published under the Creative Commons Attribution license.

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