By Gary Adamson - Strata Management Services - NSW
Many strata title lot owners are under the impression that the only way to resolve a strata dispute is pursuant to the provisions of the Strata Schemes Management Act 1996 (NSW).
This misconception was recently tested in the NSW Supreme Court in the matter of Cuzeno Pty Ltd v The Owners - Strata Plan No. 65870  NSWSC 1385. In that case, Justice Darke made an order granting a lot owner an easement over an area of the common property to enable the owner to install a grease trap for the operation of a café, without having first obtained consent from the Owners Corporation (by virtue of a special resolution and relevant by-law).
The Owners’ Corporation was ordered by the Court to register an easement in favour of Cuzeno Pty Ltd. The Court also made an order for compensation in the amount of $8,400 payable to the Owners’ Corporation, as well as an order for costs such that the lot owner was liable to pay all costs in the matter.
The case demonstrates the following:
(a) The granting of a compulsory easement under section 88K of the Conveyancing Act 1919 (NSW) also applies to strata schemes;
(b) Compulsory easements may be granted to a lot owner over common property in circumstances where no other form of authorisation is given for works undertaken by the lot owner on common property; and
(c) A lot owner’s remedies where an Owners’ Corporation refuses to permit works to be undertaken on common property are not limited to the remedies set out in the Act as they may also include compulsory easements.
If you have a questions, call the REINSW Helpline on (02) 9264 2343 (option 4)