Part 56 published on 01/11/16
Owners mistakenly assumed deck was part of the common property. No significant unfairness
In this two-unit strata plan, the two owners had assumed that a deck was part of the common property. They had both enjoyed full access to the entirety of the deck, including use of a hot tub, shower and picnic table. The two owners had also agreed to significant upgrades to the deck’s structure, with the costs shared by the two owners.
It was subsequently discovered that the deck is in fact limited common property for the use of only one of the two strata lots. Changing this (to a shared or common property deck) would require the consent of both owners; and the owner having the limited common property right refused. The other owner applied for an order that the deck be designated as shared common property.
The Court held that there was no unfairness, and dismissed the application. The Court said:
In my view, the common use of the Deck by Ms. Meekison and Ms. Chen and the owners of SLs 1 and 2 before them arose, not from any legal entitlement which would give rise to the result Ms. Chen seeks on this application, but rather from the desire amongst owners to be good neighbours and share the bountiful amenity that the full use of the Deck provided.