straita

By-laws

What is a common property rights by-law?

Short answer

A common property rights by-law is a by-law that gives a particular owner special rights over part of the common property — most often exclusive use of an area (such as a courtyard, storage space or car space) or the right to keep and use something they have installed on common property (such as an air-conditioning unit, deck or awning). It is made by special resolution and registered like any other by-law, and it usually also sets out who is responsible for maintaining the area or item.

When a scheme uses one

Ordinary common property is shared by all owners, so an individual owner normally has no right to fence off part of it or bolt something permanent to it. A common property rights by-law is how the scheme grants that individual right in a controlled, recorded way — for example, giving a ground-floor lot exclusive use of the courtyard outside it, or letting an owner keep the air conditioner they have mounted on a common wall. Without such a by-law, that use would not be authorised.

Who maintains the area or item

A well-drafted common property rights by-law does more than grant the right — it allocates the ongoing responsibility. It typically states who must maintain, repair and insure the area or installed item, and who bears the cost. That matters because, absent a clear allocation, disputes arise later over whether the owner or the owners corporation has to fix the deck, the awning or the courtyard. Settling responsibility in the by-law itself is the point.

How it is made

Because it changes who can use part of the common property, a common property rights by-law requires a special resolution of the owners corporation at a general meeting, and it must be registered with NSW Land Registry Services to take effect. The owner benefiting from it will usually also need to have agreed to its terms, including the maintenance obligations it imposes on them.

Keeping the rights and duties clear

The trouble with these by-laws is that the grant and the maintenance duty attached to it have to be findable years later, often after the original owner has sold. A system such as Straita holds each registered common property rights by-law alongside the lot it benefits and the responsibility it assigns, so a self-managed scheme always knows who is entitled to what and who has to maintain it.

Primary sources