Question: For many years a unit in our scheme has had exclusive use of a fenced courtyard however, there are no records of the agreement. Can the owners corporation reinstate the courtyard back to common property?
For many years a ground floor unit in our scheme has had exclusive use of a fenced courtyard however no one can produce a lease or licence agreement to validate this. The owner does not have a copy and the owners corporation claim their files were destroyed in a flood many years ago and they can’t confirm if there was ever a lease or licence agreement.
What happens if the document is lost or destroyed and there is no way of determining what the conditions of the lease or licence agreement were? Can the owners corporation reinstate the courtyard back to common property?
Answer: The onus of proof is on the person using the common courtyard.
The onus of proof is on the person using the common courtyard. They must prove that the owners corporation resolved by special resolution to grant a licence/lease for the common courtyard.
In the absence of such proof, in our view, the owners corporation could take back the area once it successfully obtains an order in VCAT that no lease was granted to the person exclusively using the courtyard.
Rochelle Castro
RC & Co Lawyers
