Share on Social


Related articles

QA Selling Common Property - One Owner Says No


18 May 2022

Question: Our owners corporation would like to sell some common property. One owner out of 8 says “no”. Can we proceed?


I own a unit in a block of 8. There is a block of land at the end which is owned by our block. The land is worth about $200,000, so each owner’s stake is $25,000.

Seven owners would like to sell the block, but every time the matter is raised one owner votes “no”. She owns the unit next to the block and has moved her fence in order to use some of the block for her garden. She doesn’t want anything built next to her.

Is a vote of 7/8 enough to be able to sell? Can we force her to move her fence back to its original position?
 

Answer: Like every case, it would come down to evidence about what the proper value is and what other amenity type issues there are

 

Well, I think two things arise out of that. One is the plan amendment and the other is the notion of the fence.
Dealing with those separately, factually It sounds very much like the Butten v Khung & Ors (Real Property) [2010] VCAT 252 or the ‘ALDI’ example* where most owners want to sell but one person doesn’t. This isn’t a circumstance where they lose Title. I’d imagine that this parcel is common property that can be carved out and disposed of. It very much looks like it’s the ‘ALDI’ example if that’s the case.

If you get a fair purchase price the tribunal would require some evidence that the sale value has some relationship with proper realisable value. That would deal with the economic best interest.

As far as the social best interest goes, well I suppose the sole lot owner’s arguments are going to be probably more planning arguments such as:

·         overshadowing
·         overlooking
·         and the proximity of any construction that might occur

Those would have to be balanced out, so this case, like every case, would come down to evidence about what the proper value is and what other amenity type issues there are. It looks pretty similar to the ‘ALDI’ example on its general principles.

In regards to the fence, it’s of course common where owners abutting parts of common property see them as their fiefdom and that they can use them as their own and fence them off, etc. It’s a plain breach of the model rules. Whether or not you’re owners corporation has registered rules, I don’t know but you probably don’t need them. The model rules make it clear that an owner or occupier must not obstruct other owners and occupiers or lawful interests from their ability to access common property so that fence can be removed apropos a rule breach.

*Refer to Tim Graham’s recently recorded VIC Webinar: How to alter your plan of subdivision


Tim Graham
Bugden Allen Graham Lawyers