Key points

The Strata Company applied to the Tribunal for an Order that a tenant of 2 Lots in the Scheme, Garman Nominees, remove at its cost, various structures and installations erected on Common Property and deliver vacant possession of 2 areas of the Common Property to the Strata Company.

Garman Nominees did not install the various equipment on the Common Property. But, it purchased that equipment when it became the tenant of the Lots.

The Tribunal considered the relevant statutory regime relating to the use of Common Property and the erection of structures on Common Property and held that:

(a) Garman Nominees had no right to use or erect structures on the Common Property in the absence of an Exclusive Use By-law and without the authority of a lease or license granted by the Strata Company by Resolution Without Dissent; and

(b) Garman Nominees must remove the structures, refrigeration plant, compressors, condensers and associated services and equipment from the Common Property at its cost within 6 weeks.

The legislation

Under the Strata Titles Act 1985 (WA) (Act):

(a) Common Property is owned by all of the Lot Owners in undivided shares in proportion to the Unit Entitlement of their respective Lots.

(b) The Owners of Lots cannot separately deal with or dispose of their share of Common Property;

(c) All Owners can use and enjoy Common Property in a manner that does not unreasonably interfere with other Owners’ use and enjoyment of the Common Property;

(d) a Strata Company has a statutory duty to control and manage the Common Property for the benefit of all Owners;

(e) Exclusive use and enjoyment of a part of the Common Property can be conferred on an Owner by way of an Exclusive Use By-law; and

(f) a Strata Company can enter into a lease or a long term licence over Common Property by Resolution Without Dissent and such a lease or license has effect if it is approved in writing by the relevant Local Government.

Discussion

The Tribunal referred to, applied and followed various earlier decisions of the Tribunal and the Supreme Court noting that:

(a) an Owners’ right to use and enjoy Common Property does not enable them to exclude any other Owner from making use of the Common Property; and

(b) structures or any object affixed to the Common Property without the: “express authority” of the Strata Company should be removed because 'it results in the use of part of the Common Property for the Owner who installed it to the exclusion of the other Owners”.

Outcome

The Tribunal held that:

(a) the structures prevent other Owners and Occupiers from using and enjoying the Common Property;

(b) the Strata Company had not granted an Exclusive Use By-law, lease or licence to Garman Nominees allowing them to use the Common Property;

(c) Garman Nominees must remove all structures from the affected aspects of the Common Property and make good all affected and adjacent surfaces and any damage caused by the carrying out of the work to remove the structures; and

(d) Garman Nominees was required to vacate and deliver vacant possession and control of the affected Common Property to the Strata Company.

Key takeaways

Garman Nominees:

(a) had been the Occupier of the Lot the subject of the proceedings for more than 12 years and the plant and equipment the subject of the proceedings were in-situ when it purchased the supermarket business being operated from that Lot and entered into the lease of the Lot; and

(b) gave evidence that it was unable to operate its supermarket business from the Lot if it was ordered to remove the structures the subject of the proceedings.

Notwithstanding the above, the Tribunal applied the Act and followed various previous decisions of the Tribunal and the Supreme Court to the effect that Owners cannot exclusively use or cause alterations to Common Property in the absence of a Resolution Without Dissent authorising them to do so.

Prospective leasees and purchasers of Lots in Strata Titles schemes should undertake appropriate due diligence to ensure that they are purchasing, leasing or have a right to use the parts of the Scheme they think they are acquiring.

Strata Companies must, in accordance with their obligations to control and manage the Common Property for the benefit of all Owners, take steps to:

(a) cause Owners to remove their unauthorised personal property, structures and installations from Common Property; and

(b) regain control of any aspect of the Common Property under the unauthorised exclusive use of any Owner/s.

Strata Companies should not be “afraid” to act against any Owner on the grounds of longstanding adverse use of Common Property because the decision in Garman Nominees demonstrates that the Tribunal will not allow any argument of long-standing use to usurp the requirements of the Act.