Can You Put a Shed, Pergola or Spa in Your Exclusive-Use Area?
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Owners with exclusive use of a courtyard, balcony or garden often assume that because the space is theirs to use, they can put whatever they like on it.
In practice, that’s not always the case.
Under Queensland’s Body Corporate and Community Management Act 1997 (BCCMA), an exclusive-use area gives an owner particular rights to use part of the common property, but it doesn’t necessarily mean the area becomes the owner’s private property. If you’re thinking about installing a shed, pergola, spa or other structure, there are a few things to check before you start.
What Does “Exclusive Use” Mean?
Exclusive use is created by an exclusive-use by-law and generally gives the owner of a particular lot the right to use a defined area of common property to the exclusion of the other owners.
For example, an exclusive-use by-law might give an apartment owner the right to use a particular courtyard or garden area. Or give a penthouse owner exclusive use of a rooftop terrace.
The important point is that exclusive use is a right to use the area. It does not necessarily give the owner unrestricted control over it.
The terms of the exclusive-use by-law are therefore the first place to look.
Check the Exclusive-Use By-Law
Exclusive-use by-laws can be very different from one scheme to another.
Some may simply give an owner exclusive use of an area. Others may set out specific responsibilities and restrictions, including what the area can be used for, who is responsible for maintenance, and whether alterations or improvements require approval.
Before installing anything substantial, read the by-law carefully.
A small pot plant and a large permanent pergola are obviously very different propositions, but even something that seems relatively straightforward can raise questions about whether you are altering common property.
Is it a Structure or an Improvement?
This is where things can become a little more complicated.
There is a difference between putting furniture or other movable items in an exclusive-use area and making an improvement to the area.
A shed, pergola or spa could potentially be considered an improvement, particularly if it is fixed in place, connected to services or involves changes to the common property.
For example, the installation might involve:
- fixing something to the ground or building
- electrical or plumbing connections
- changes to waterproofing or drainage
- adding significant weight to a balcony or rooftop
- changing the appearance of the building
- altering or using common property
This doesn’t mean the improvement can’t be made. It means you may need to check the exclusive-use by-law and the body corporate approval requirements before going ahead.
The fact that something is located entirely within your exclusive-use area doesn’t necessarily mean you can install it without approval.
What About a Shed?
A small freestanding garden shed might seem harmless, particularly in a courtyard or garden.
But before installing one, consider whether the exclusive-use by-law allows structures or improvements to be placed in the area.
You should also consider whether the shed is attached to common property, affects drainage or landscaping, or requires any other work to common property.
There may also be planning or building requirements depending on the size and nature of the shed.
The key question isn’t simply “Is the shed inside my exclusive-use area?” It’s “Am I permitted to install it there?”
What About a Pergola?
Pergolas can raise even more questions because they are usually a more permanent structure.
A pergola may involve posts fixed to the ground, attachment to a building, roofing or screening, and changes to the appearance of the property. If the work involves common property, an owner may need the appropriate body corporate approval before proceeding.
And even where the exclusive-use by-law permits improvements, there may be conditions about how the work must be carried out and who is responsible for maintaining it.
For a larger or more substantial structure, it is worth getting the position clarified before obtaining a contractor or commencing work.
What About a Spa?
A spa can be particularly tricky.
Apart from the question of whether you are allowed to install it, there can be issues around:
- the weight of the spa when full
- structural capacity
- electrical connections
- plumbing and drainage
- waterproofing
- noise
- access for installation and removal
- maintenance and repairs.
For a balcony, rooftop or other elevated area, structural considerations are particularly important.
A spa may look like a piece of outdoor furniture, but a filled spa can weigh a significant amount. You should not assume that because it fits physically within the exclusive-use area, the structure can safely support it.
Who Pays for Maintenance and Repairs?
This is another important issue that can be easily overlooked.
Exclusive-use by-laws often allocate maintenance responsibilities to the owner who benefits from the exclusive use.
That doesn’t necessarily mean the owner can make whatever alteration they want. It means the by-law may place responsibility for maintaining particular parts of the area on that owner.
If you install a structure with the appropriate approval, you should understand who will be responsible for maintaining it, repairing it and eventually removing it.
This can become particularly important when an owner sells the property. A future owner may inherit the responsibility for an improvement that they didn’t choose to install.
Do You Need Body Corporate Approval?
Possibly. And this is the part you should check before doing anything.
Whether approval is required will depend on the nature of the proposed work, the exclusive-use by-law, the relevant legislation and whether common property is being altered. You should not assume that an exclusive-use area gives you automatic permission to make structural changes.
If approval is required, the type of approval and resolution needed can depend on the circumstances.
There may also be separate requirements under planning, building, electrical or other legislation.
Your body corporate manager can help identify the body corporate process, but where the legal position is unclear or the proposed work is substantial, professional advice may be appropriate.
What if you Install it Without Approval?
This is where a project that seemed simple can become an expensive problem. If an owner installs a structure without the necessary approval, the body corporate may have options to require the owner to address the unauthorised work.
The situation can become particularly difficult if the work has affected common property, waterproofing, structural elements or building services.
It can also create problems when the property is sold, particularly if there is no clear record of the approval for the improvement.
Getting the approvals sorted out before the work begins is generally much easier than trying to resolve an unauthorised structure afterwards.
A Good Rule of Thumb
If you’re putting something in an exclusive-use area that is fixed, permanent, heavy, connected to services or changes the appearance of the property, don’t assume you can simply go ahead.
Before ordering the shed, booking the builder or arranging delivery of the spa:
- Find the exclusive-use by-law and read the conditions.
- Work out whether the proposed installation affects common property.
- Check whether body corporate approval is required.
- Consider building, planning, structural and other requirements.
- Clarify who will be responsible for future maintenance and repairs.
- Get the approval properly documented before work starts.
Exclusive use Doesn't Mean “Anything Goes”
An exclusive-use area can give an owner valuable rights, but those rights come with conditions.
The safest approach is to look at the actual exclusive-use by-law rather than relying on assumptions about what you can do with the space.
A courtyard may be yours to enjoy exclusively, but that doesn’t necessarily mean you can build a pergola in it. A balcony may be for your exclusive use, but that doesn’t automatically mean it can support a spa.
Before making changes, check the by-law, check the approval requirements and make sure you understand your responsibilities.
This article is general information only, not legal advice. Every scheme’s by-laws are different. Check yours, or speak with your body corporate manager, before making any changes to your exclusive use area.
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