No Strata Chains Can Contain this Car

EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464

Quick Read

This 2018 NSW Supreme Court decisions is about a dispute in a Potts Point strata title building about parking space access rights. In simple terms [as the dispute was protracted], a strata owner needed to swing part of their vehicle across adjoining common property to enter and exit their car parking space, but as part of a series of disputes between the strata owner and strata building, the strata building proposed changes to the common property that would make that impossible. So, the NSW Supreme Court had to decide whether or not the strata building could restrict the strata owner’s access to the adjoining open common property area or not. After considering the strata laws and ownership principles, the NSW Supreme Court decided that reasonable access to strata lots across common property was fundamental right of strata owners that could not be interfered with by strata owners or strata buildings based on at least 3 legal principles. So, it stopped the strata building from doing anything along a strip of common property adjoining the car parking space. The decision highlights how existing access to strata lots [at least] can’t be interfered with or restricted. Plus, it also demonstrates how ongoing battles in strata buildings can negatively affect litigation outcomes.

Implications

NCAT can’t make declaratory orders [statements about the law].
One of the fundamental purposes of common property is to give strata owners access to their strata lots.
Strata buildings must be under the same obligations as strata owners under s 153.
That means strata buildings can’t use common property in ways that unreasonably interfere with another strata owner’s use of their strata lot.
At least 3 legal doctrines support that conclusion.

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Full Report & Case Details

This decision by the NSW Supreme Court is about a dispute in a Potts Point strata title building about parking space access rights.

It’s also the latest [and last?] round of an ongoing dispute between the strata building and strata owner over parking, so the history matters.

In July 205, the strata owner purchased the car parking space lot [which is not attached to an apartment] and began using it.
The car parking space lot is next to a few other car parking spaces on one side and an open area of common property on the other but extends across the whole car park area [see Figure A] so prevents access to the adjoining open common property area from the car park entrance.
Later in 2015 the strata building informally created parking spaces in the adjoining open common property area and give permission to other people to park there. But, to do so they had to cross the strata owners’ car parking space lot.
The strata owner complained and started legal action, so the strata building conceded and ended the new parking arrangements in the adjoining open common property area.
Instead, the strata building installed a chain along the boundary of the strata owners’ car parking space lot and the adjoining open common property area, restricting access to that common property area.
That was a problem for the strata owner as the tight car parking layout meant that a vehicle could not enter or exit the strata owners’ car parking space lot without swinging into the adjoining open common property area as shown in Figure B and Figure C. Expert evidence indicated the swing extended between 70 cm and 161 cm.
The strata owner handled this by loosening the chain enough to allow entry and exit.
The strata building then approved 2 new proposals for the use of the adjoining open common property area.
One was to enclose the area with a wall built 57.5 cm from the boundary of the strata owners’ car parking space lot. The other was to create a communal recreation area and garden that was 30cm from the boundary of the strata owners’ car parking space lot. Both effectively preventing a vehicle from entering and exiting the parking space.

So, the scene was set for this dispute about whether or not the strata building could restrict the strata owner’s access to the adjoining open common property area or not …

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Keywords

#NSW #NSWSupremeCourt #parking #commonproperty #access #2018 #SSMA2015 #s153 #SSDA2015 #s28