Is another tenant to your strata being a nuisance? Are other tenants effecting your exclusive use to parking? Or are you having difficulty interpreting complex by-laws? A current case at the Supreme Court of NSW provides some clarity on these issues by commenting on the interpretation of Strata By-Laws at law, as well as what is required when determining if someone is being a nuisance.
Background
In 1966 a Strata Scheme comprising of 100 lots was registered, of those 100 lots, lots 1 to 50 were residential apartments and the remaining lots 51 to 100 were parking spaces for the relevant residential lots of the Strata.
Over time it was found that the construction of the property and surrounding common property didn’t provide adequate space for the owner of parking space lot 51 (Defendant) to access his space without blocking the access to several other parking space lots.
In 1988, the Owners Corporation (Plaintiff) for the Strata Scheme passed a special by-law granting the Defendant a right of exclusive use and enjoyment to an area of the common property for the purposes of parking his vehicle provided he did not use lot 51 for parking. However when drafting the by-law there was no mention of not parking in lot 51 only that the Defendant was entitled to exclusive use and enjoyment to an area of the common property for parking.
When the Defendant continued to use lot 51 as well as the area of common property, the Plaintiff contested the matter in court.
Court Proceedings
The Plaintiff submitted to the Supreme Court that the Strata By Law was to be read in context as the right of exclusive use it conferred over part of the common property was given to the owner of Lot 51 in substitution for the right to use the lot as a car parking space and therefore the Defendant no longer had a right to use lot 51.
It was also submitted by the Plaintiff that because the Defendant continued to park in lot 51 with blatant disregard for the impact it would have for the other lot owners who had obstructed access to their parking lots, he was committing actionable nuisance.
His Honour Darke J sided with the Defendant on both submissions made by the Plaintiff. With regard to the interpretation of the special by-law, his honour stated that “If it was intended to cut down the property rights of the owner of Lot 51 it would be expected that words clearly showing the intention would be included”.
Further, on the issue of actionable nuisance his honour rejected the Plaintiffs claims stating that the mere causing of some inconvenience is not necessarily an actionable nuisance.
Concluding Comments
This case sets a strong precedent on a myriad of principles of strata disputes, namely that the interpretation of by-laws is to be objective, meaning the courts will not consider the context that the by-law was created in to interpret what is written. Further, that nuisance is not simple to establish at law and that a mere inconvenience does not justify a finding.
If you require more information on the above please contact Ben Wong on bwong@marsdens.net.au or by phoning 02 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
