Body Corporate Law

ON TITLE VS OCCUPATION AUTHORITY VS EXCLUSIVE USE

Kelsey Huebner, Partner (Non-Principal), Management Rights and Body Corporate Law

These are common terms for how areas might be granted to you in a body corporate or as caretaker/letting agent in Queensland under the Body Corporate and Community Management Act 1997 and associated regulation modules.

So, what are they and what do they mean?

On title

This means the area is on the title of your lot in the community titles scheme. You own that area in the boundaries of your lot whether it is your unit/commercial office/retail space/carpark/balcony or courtyard. You can find this on the plane that marks and shows your lot.

Now this does not necessarily mean you can simply do what you want with this area the type of plan that governs your scheme (building or standard format) determines maintenance responsibilities, development, building and planning approvals, certificate of occupancy and zoning provides for the use of such area and your by-laws and legislation govern what you can and cannot do including alterations and maintenance of your lot.

Occupation authority

Under the module governing your scheme (accommodation and standard being the most common modules that we will look at here) provide for the use of common property to a caretaker or letting agent. Since July 1997 the use of common property by a caretaker or letting agent must be granted by a common property occupation authority in the management rights agreements or separate occupation authority grant rather than exclusive use.

The common property grant means that the caretaker or letting agent can use this area of body corporate common property whilst the management rights agreements are in existence.

This area must be used by the caretaker or letting agent to perform their caretaking duties or operate their letting business. Common property areas typically granted may include an office, foyer, reception or storage cage or shed. The agreements may provide who is responsible for maintenance of the area, insurance for the area or contents, and capital repairs. If the management rights agreements expire, then you will lose the access to such area.

This area should be marked on the plan attached to the management rights agreements or common occupation authority deed.

Exclusive use

An exclusive use area is a common property area that attaches to the lot you own or occupy and is recorded in Schedule E and exclusive use by-laws of the Community Management Statement (where your by-laws are also typically found unless you are under an interim statement or BUGTA). Yes, this area may also be used by the tenant unless you do not lease this area as part of the lease with the tenant.

This common property area may be a car park, garage, courtyard, balcony or storage cage and remains with the lot. I.e., if you sell the lot, you also sell the exclusive use right to this area attaching to the lot. You do not own this area but the exclusive right to use it.

Pre July 1997 common property used for the management rights was also granted this way and remains in effect if granted by this date unless revoked by passing a resolution without dissent at general meeting (no owner can vote against the motion) and the exclusive use lot owner’s agreement to such change.

Under the by-laws there will generally be conditions on what you can or cannot do with this area, who is responsible for maintenance, cleanliness and repairs and if not, the legislation will prevail.

If you need help understanding what areas you have, conditions applying to such area or what you may be selling with your lot, or your management rights agreements reach out here:

https://mba-lawyers.com.au/contact/

(07) 5539 9688

0400 045 498

[email protected]

Disclaimer: this article is provided for information purposes only and should not be regarded as legal advice.