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Exclusive use by-law

An exclusive use by-law is attached to a lot in a body corporate. It gives the occupier of that lot the right to the exclusive use (or other special rights) to a part of the common property or a body corporate asset.

For example, an exclusive use by-law may give the occupiers of a unit an exclusive right to use the common property next to that unit as a courtyard, or part of the basement as a car space.

The part of the common property, or asset, is usually identified in the by-law.

An exclusive use by-law cannot give rights to utility infrastructure that is common property or a body corporate asset.

Making an exclusive use by-law

The rules for making exclusive use by-laws are stricter than those for making other by-laws.

An exclusive use by-law may be attached to a lot only if:

  • the body corporate passes a resolution without dissent to record a new community management statement that includes the by-law

and

  • the owner of the lot that benefits from the by-law agrees in writing or votes personally on the resolution.

The body corporate must record the new community management statement that includes the exclusive by-law with the Titles Registry Office within 3 months after passing the resolution.

The by-law will only apply when the new statement is recorded.

Removing an exclusive use by-law

Once an exclusive use by law is recorded it is difficult to have it removed or changed.

An exclusive use by-law will only end if:

  • the body corporate passes a resolution without dissent to record a new community management statement  that changes the by-law

 and

  • the owner of the lot that benefits from the by-law agrees in writing or votes personally on the resolution.

Reallocating exclusive use areas

Two or more owners can decide to swap the areas of common property or body corporate assets identified in the exclusive use by-laws applying to their lots. This is done by an agreed allocation.

The owners must give details of the reallocation to the body corporate. Once the body corporate is told of the reallocation, the body corporate must lodge a new community management statement that includes the changes.

A general meeting resolution is not necessary in this case.

By-law conditions

The body corporate can impose conditions when giving exclusive use rights.

For example, the person who benefits from an exclusive use by-law might have  to pay the body corporate a regular fee.

If an owner does not make the payments this becomes a body corporate debt. The body corporate can recover the debt from:

  • the owner of the lot at the time of the debt

or

  • any new owner of the lot if the debt is unpaid when the lot is sold.

Maintaining an exclusive use area

The lot owner with exclusive use or other rights must maintain and pay any operating costs for the exclusive use area—unless the by-law says otherwise.

However, if the lot was created under a building format plan of subdivision and the by-law does not say otherwise, the owner is not responsible for:

  • roofing membranes that are on part of the common property to which the by-law applies and give protection for other lots or common property
  • maintaining in a structurally sound condition structural parts that are on the common property to which the by-law applies and were not built by or for the owner. These are
    • foundation structures
    • roofing structures providing protection
    • essential supporting framework, including load-bearing walls.

An exclusive use by-law cannot make a lot owner responsible for the maintenance of any utility infrastructure (such as pipes, wiring or equipment) that is common property or a body corporate asset.

Improving exclusive use areas

An exclusive use by-law may allow the owner who has the benefit of the by-law to make improvements to that area. This can include installing fixtures (like an air conditioner) or making other changes to the common property.

If the by-law does not give the right to make improvements, the owner can only make an improvement if the body corporate agrees.

The committee can approve improvements to exclusive use areas if the cost is $3,000 or less.

Improvements over $3,000 must be approved by ordinary resolution at a general meeting.

Further questions?

If you have further body corporate questions you can submit an enquiry or phone the information service on 1800 060 119 (freecall).

We cannot give legal advice or rulings—we can only give you general information on body corporate legislation.

Last updated
5 February 2018
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