Difference between Exclusive Use and Prohibited Use

An adjudicator recently considered an application to make some owners responsible for the maintenance of a lift which only serviced a separate part of a tower, in circumstances where residents of others parts of the tower were prohibited from using the lift, even though they were members of the same body corporate.

The applicant essentially claimed that the prohibition amounted to a grant of exclusive use of the lift, and therefore the permitted users should pay for its maintenance.

The adjudicator noted that infrastructure such as a lift cannot be the subject of an exclusive use by-law, so the application failed. However, the adjudicator noted expert evidence that that there is no real costs differential between a lift that serviced the lower half of a building and one which serviced the top half.

The applicant also sought orders that the owners with the exclusive use of rooftop facilities bear responsibility for its maintenance. This application was dismissed when evidence was produced indicating that the costs of maintaining the rooftop facilities were taken into account at a recent lot entitlement review.

The decision is important for:

  • those bodies corporate which have lifts servicing different owners, or those which have some buildings with lifts while others are walk-ups. They should change any exclusive use by-law to a by-law prohibiting the use by specific residents; and
  • those planning the creation of new bodies corporate so as to get the by-laws right from the start.

It also reflects the importance of having the lot entitlements correctly set.

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