A dispute may arise because an association considers it reasonable to require an owner or occupier to accept obligations in respect of some part of the common areas.
In terms of section 39 (6) (g) of the CSOS Act, an application may be for:
“an order obliging an owner or occupier to accept obligations in respect of a defined part of a common area”
Examples of issues
It often happens that some person in a community scheme has effective control over a part of the common areas, perhaps a garden that only people in one dwelling can access because it is walled, but it is not an exclusive use area.
Another example is where a previous owner has installed exterior fittings, such as a security gate that blocks off part of a common interior passage, which gate operates only for the benefit of the current owner.
In these circumstances and if the owner(s) concerned are not prepared to agree to undertake obligations in regard to the specified common area, the association can apply for a CSOS adjudictor’s order obliging the persons concerned to accept responsibility for the maintenance and repair of the area or devices.
Such an application could be accompanied by an application for an order n terms of section 39(3)(b) of the CSOS Act (Require the scheme to approve and record a new scheme governance provision) asking that the association be ordered to approve and record a new scheme governance provision setting out the owner’s obligation, so that it will be obvious to any future purchaser of the property.
Example of order
An example of the type of order the CSOS could give is:
That with immediate effect and for so long as the common property passage lettered ABCD on the attached plan is closed off by a set of gates, the owner of section 5 Billabong Heights is liable to and must carry out and pay for the maintenance that area and those gates.
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