Help! A man has hijacked our common area. Part 2
Good day, readers. Sorry for missing last week due to circumstances beyond my control. This week, I will continue with the response to the question below.
Greetings, Mr Francis,
I am a very concerned property owner who hopes that you can advise me on a problem I am facing.
I have purchased a property (town house) within a gated community that comprises four units but I recently discovered that:
The land area between the property boundary wall and the wall of town house No. 1, a corner lot, is designated as common area. The land area is rectangular in shape and extends from the front to the back of the property.
But the owner of town house No. 1 has enclosed the common area by the construction of a gate at the front of the entrance and has constructed a swimming pool that extends significantly into this common area.
This situation was created immediately after the construction of this town house complex, more than 14 years ago, and has existed since then.
As per the Owners' Agreement, each owner has an undivided one-fourth share in land designated common area within the complex.
I consider the action of the owner of town house No. 1 to be unfair and would like to know what are my options.
Also, if he sells his property, could he also sell the common area that he has encroached on and has enclosed?
- C. B.
I note you say the development you are a part of is a gated town house complex. I am doubtful that it is a strata development. If this is not the case, your course of action is a little more tedious and challenging.
The Strata Titles Act allows for simple, relatively speaking, adjudication and resolution of these matters as it can be referred to the Commission of Strata Corporation, which will adjudicate the matter and make decisions as to the course of action to be taken.
However, because this is a town house complex not registered under the Strata Titles Act, despite the community being gated and the sharing of a common area, your matter cannot be referred to the Commission of Strata for it to take any action as this is not in its remit.
You should first have a commissioned land surveyor prepare a surveyor's report that will show the encroachment, what is causing the encroachment, and how much area is being encroached.
With this, you will then take it to your lawyer (this action can be taken in tandem with the other owners). Your lawyer can then write the individual who has encroached on the common area to have the structure that has encroached to be removed.
If this is not done, then other aspects can be explored. One would be for the four persons to decide if they would want to have the section already encroached leased to the occupier of town house No. 1 who has encroached.
Or the determination and agreement could be made that the pool that encroaches is common property and is at the disposal of all four owners and their invitees.
This would make the encroachment null as it would now be common property and everyone would have their equitable share in the property. This would also mean equitable share in the maintenance as well.
If, however, none of the suggestions is acceptable to the owner of town house No. 1, who created the encroachment, then you would have to take the matter to court.
This would be a civil matter and you would ask the judge to make a determination. This you would do through your attorney.
I, however, hope for an amicable and expeditious agreement between you and your neighbour.
Keep sending our questions and comments and let's continue to explore A Matter of Land. Until next time, traverse well.
- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at firstname.lastname@example.org or Precision Surveying Services