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Up, down and all around: dealing with adjoining owners
8 March 2019
As a strata manager, you not only interact with your owners corporation, but also with owners of adjacent and adjoining buildings. So, while you are responsible for your strata scheme, a variety of issues can arise in relation to other buildings, structures or land that affect your owners corporation and its stakeholders.
Warwick van Ede, Lawyer at
JS Mueller & Co Lawyers
, says there are many issues that can arise from your “neighbours” and he’s given us the low down on how to deal with them.
Under the ground
“We are often called on to advise strata schemes where a neighbouring land owner requires a permanent right over common property,” says van Ede. “A frequently-occurring example is where an adjoining owner requires an easement to drain water to enable them to properly develop their land.”
van Ede says an easement of this type, when properly documented, enables the owners corporation to:
Set limits on the physical boundaries of an easement
Specify the terms of the easement
Ensure that any physical works carried out on the common property are done properly
That the common property is properly restored once any work has taken place
That these rights are granted in return for an appropriate amount of compensation
While he agrees approval of such easements can be obtained by other means, he says by engaging the requestor in appropriate documentation, strata managers and the owners corporation are likely to have better control over the process and avoid legal proceedings.
“The Conveyancing Act 1919 (NSW) provides the Supreme Court of NSW with the power to make an order imposing an easement over land, if that easement is ‘reasonably necessary for the effective use or development of other land’,” he says. “But the courts have also taken the view that appropriate compensation has to be part of the offer process, and therefore it is important that there be some valuation evidence in relation to this.”
“It is quite common for us to negotiate agreements between owners corporations and adjoining owners relating to the use of ground anchors, or rock anchors,” says van Ede.
Anchors stabilise land during deep excavation work, such as for an underground carpark.
“As with easements, the right to use rock anchors is theoretically obtainable for an adjoining land owner using the Supreme Court process under the Conveyancing Act,” says van Ede.
“However, it is usually advantageous to both parties, and certainly beneficial to the owners corporation, if the process can be agreed and set out in appropriate documentation, and appropriate compensation paid, without the need for either party to resort to litigation.”
Up in the sky
The Sydney skyline is constantly dotted with construction cranes. Which begs the question, who owns the airspace above a building?
“There is no automatic right to swing a crane through the airspace above another building,” says van Ede. “This is a right which, once again, needs to be obtained.
“It is important that various matters are clearly documented to properly protect the owners corporation, including specific insurance requirements, operational matters relating to the erection and operation of the crane, Work Health and Safety issues, matters relating to the indemnification of the owners corporation, the carrying of loads and the rectification of any damage.”
Back on the ground
van Ede says strata schemes regularly enter into arrangements with the owners of adjoining land in relation to a multitude of other rights.
“These can be as diverse as the need to temporarily locate scaffolding on common property to enable cleaning works to take place next door, allowing owners corporation property to be used for commercial purposes, such as a murals or painting for advertising purposes, allowing the installation of equipment (such as cameras and lighting) to be located on common property and to allow the installation of other commercial equipment on common property,” he says.
“Again, these are all matters where the owners corporation needs adequate protection in allowing an adjoining owner to exercise certain rights. For example, you need to be able to control the hours during which certain work takes place, the qualifications and insurance of any persons entering upon the owners corporation’s property and the size and appearance of equipment to be located on common property.”
van Ede says whatever arrangement an owners corporation comes to with owners of adjacent and adjoining buildings – even if the relationship if “friendly” – it is important that it is always documented. It is the simplest way to ensure all parties are informed and protected.
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REINSW thanks Warwick and JS Mueller & Co Lawyers for contributing content to this article.
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