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WA Exclusive Use Strata Title Entitlements & Duties Western Australia?

Discussion in 'Property Law Forum' started by Camelia, 2 May 2014.

  1. Camelia

    Camelia Active Member

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    I own a house in a strata title plan which was registered with the Landgate Perth, WA in 1986 and the entire land is recorded as common property with designated "exclusive to use" boundaries. Who is supposed to pay for the maintenance and repairs of this exclusive use area? Can you point the exact paragraph in the updated Strata Titles Act which responds to my query?
     
  2. CathL

    CathL Well-Known Member

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    Hi Camelia,
    Section 35(1)(c) of the Strata Titles Act 1985 (WA) sets out the duties of the Strata Company in respect of the common property. Part of that duty is to:
    “keep in good and serviceable repair, properly maintain and, where necessary, renew and replace the common property, including the fittings, fixtures and lifts used in connection with the common property.”

    However, section 42(11) of the Strata Titles Act provides that the strata lot owner is responsible for the duties of the Strata Company in respect of their exclusive use area/s (unless the exclusive use by-law makes an exception).

    The Strata Titles Practice Manual for Western Australia provides information addressing your question:
    6.14 Exclusive Use
    Section 42(8) of the STA allows a strata company by a resolution without dissent to create a by-law to grant exclusive use and enjoyment of, or special privileges to, a lot proprietor of all or part of the common property. These rights are not the same as ownership. The lot proprietor must consent in writing to the terms of the by-law and this consent should be retained with the strata company records. By-laws for exclusive use or special privilege may contain conditions such as requirements for maintenance and repair or the payment of money to the strata company.

    The relevant by-law can be amended or repealed by a resolution without dissent )or unanimous resolution in the case of a two lot scheme).


    So you will actually need to read your by-laws and carefully read what they say about exclusive use.
     
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  3. Camelia

    Camelia Active Member

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    Dear Cath thank you for your prompt answer.

    Our Strata Plan which was drawn by a surveyor and was registered in 1986 with the Landgate shows the boundaries and states the Exclusive Use area. The by-laws for our strata company is a standard one, there is no other by-law document which mentions the rules of the house as for exclusive us. Here is actually the turning point in our dispute: is the Strata Plan only enough to grant us with Exclusive Use or there is a need for a RELEVANT by-laws to cover it?
     
  4. CathL

    CathL Well-Known Member

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    Then it seems you'd go back to section 42(11) of the Strata Titles Act: the strata lot owner is responsible for the duties of the Strata Company in respect of their exclusive use area/s (unless the exclusive use by-law makes an exception).

    If you still dispute the issue, then you'll need to present your arguments following the relevant dispute resolution procedure in your by-laws/for the Tribunal. Chapter 20 of the Strata Titles Practice Manual for Western Australia sets out information on dispute resolution and procedures.
     
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  5. Camelia

    Camelia Active Member

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    Hi Cath, thank you again for the prompt answer. You seem to be a very active member of this forum and I really appreciate your help.

    In my dispute with the neighbours I'm for each owner to pay for its exclusive use area repairs and maintenance. All other neighbours are taking advantage of the "common property", ignoring the exclusive use written on the Strata Plan, and hanging on the by-laws which is a standard one which doesn't stipulate the exclusive use. A certain strata consultant suggested that changes in the Strata Act were made in 1996/97 which don't give us anymore the right for the exclusive use as written on the strata plan, but he didn't justify what are exactly the changes.

    Currently I'm seeking independent advice and if I cannot convince the neighbours in the meeting coming this week I will go on the path you recommended. I have all the documentation available, only the Strata Act is so stuffy and complicated to read and understand, so I was trying to get expert advice from people like you who could send me in a blink of an eye to the relevant paragraph.

    Thank you again and once again, I would appreciate very much your full advice by Thursday when I have the AGM.
     
  6. CathL

    CathL Well-Known Member

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    Hi Camelia
    I'm not a WA strata titles lawyer and can't provide legal advice. This is a forum for people to share legal information and their thoughts to aid others.

    I hope I've been able to help somewhat, but for complete advice on your complex dispute, you'd need to contact a WA strata title lawyer.
     
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  7. Camelia

    Camelia Active Member

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    Thanks a lot, Atticus Finch! You put me on the right track! I will definitely get full advice from a lawyer as suggested. :)

    All the best!
    Camelia
     

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