No Strata Chains Can Contain this Car

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

GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.

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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.

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Implications

The key implications of this strata case are as follows.

• 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.