Exclusive use of some areas of common property within a strata scheme can be granted by the by-laws of the Strata Company. This is particularly common for areas such as storage areas, balconies, carports and even backyards. An exclusive use by-law is defined by the Strata Titles Act 1985 (WA) (Strata Titles Act) to be a by-law that confers the exclusive use and enjoyment of, or special privileges over, the common property on the occupiers of specified lots in the strata scheme.
Creation of an Exclusive Use By-Law
In relation to the creation of an exclusive use by-law, Member Petrucci of the State Administrative Tribunal has emphasised that “By-Laws may be made which, among other things, restrict the use of lots and common property provided they are not inconsistent with the ST Act”.
Under the Strata Titles Act, a strata company can create, amend or repeal an exclusive use by-law by passing a resolution without dissent (or a unanimous resolution in the case of a two-lot strata scheme). The owner of the lot that is proposed to have exclusive use of the common property must also provide written consent to the creation of the by-law.
Rights over Exclusive Use Common Property
Common property is owned by all the lot owners, as tenants in common, in undivided shares. Ordinarily, the right of a lot owner to the use and enjoyment of common property does not enable them to exclude any other lot owner from making use of the common property. However, where an exclusive use by-law is validly passed, the relevant lot owner can enjoy the right to exclusive use and enjoyment, or special privileges in respect of the common property or any part of it.
The granting of exclusive use is not binding until such time as the by-law has been properly registered at Landgate.
Responsibility for Exclusive Use Common Property
Ordinarily the strata company is obliged to:
- control and manage the common property for the benefit of all owners of lots; and
- keep in good and serviceable repair, properly maintain and, if necessary, renew and replace –
- the common property, including the fittings, fixtures and lifts used in connection with the common property; and
- any personal property owned by the strata company.
You can read more about common property and the strata company’s obligations here.
Where an exclusive use by-law exists, the above obligations are shared between the relevant lot owner and the strata company. Subject to the terms of the by-law, the separate responsibilities in relation to exclusive use common property can be categorised as follows:
- the relevant lot owner will be responsible for repairing and maintaining the non-structural elements of the exclusive use common property; and
- the strata company is required to repair and maintain the structural elements of the building.
Importantly, Justice Beech of the Supreme Court of Western Australia noted that an entitlement to “exclusive use does not give rise to a right for the lot owner to construct” and instead the ordinary procedures for altering common property must be followed.
The above is subject to the wording of the exclusive use by-laws themselves and it is therefore important that exclusive use by-laws are drafted to capture the true intentions of the strata company, particularly in relation to the requirements for repair and maintenance.
The contents of this article do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters.
 The Owners of Del Mar Strata Plan 53989 v Dart Enterprises Pty Ltd  WASAT 9, 35.
 The Owners of Rosneath Farm Survey Strata Plan v Rowell & Anor  WASAT 95, 23-26.
 Erbich v The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066)  WASAT 109.
 Wong v Reid  WASC 59,22.