There are a number of ways rights over the common property can be obtained. This can relate to spare car parks, storage, rooftops, airspace, extensions and even ceiling voids. The options include:
- purchasing the common property;
- obtaining exclusive use over the common property;
- leasing or licencing the common property; or
- obtaining an occupation authority over the common property.
Each of the options requires different considerations, documentation and approvals.
Purchasing part of the common property is the only option that will result in ownership of the area being changed. However, it is probably the most complicated option and requires:
- a resolution without dissent;
- a new survey plan to be prepared and lodged;
- consideration for any lot entitlement adjustments;
- a new CMS to be prepared and lodged;
- stamp duty to be paid;
- town planning consideration and approval;
- mortgagee consent;
- confirmation the body corporate is not carrying on a business; and
- transfer forms and the conveyance of the property.
The area remains as common property but indefinite rights over the area are granted to a lot in the scheme. Those rights are then regulated by a specific exclusive use by-law that is recorded in the scheme’s community management statement.
Exclusive use can only be sought by an owner of a lot in the scheme and requires a new exclusive use plan and a resolution without dissent approving a new by-law.
Lease or licence
A lease or licence is generally useful as a fall back to obtaining exclusive use as it has a lower approval threshold, the right needed over the common property is temporary or is in favour of someone who is not a lot owner.
A special resolution is needed for leases or licences under 10 years for commercial and accommodation modules (3 years for the standard module). Anything longer requires a resolution without dissent.
An occupation authority is available only to service contractors with an engagement longer than 12 months – such as a resident manager. An occupation authority becomes part of the service contract meaning that if the service contract comes to an end, the occupation authority does as well.
An occupation authority requires an ordinary resolution.