Encroachment onto common propert

  • Author : Tiphanie Acreman - 30-01-2015

In Owners Corporation SP023744S v Scarlett [2015] VCAT 99 the Tribunal refused to grant an injunction to stop a lot owner building a second floor that would encroach into the common property.  The encroachment was into common property airspace by half a brick width, and by footings constructed under ground level on the common property.

Section 12(2) of the Subdivision Act 1988 provides for implied easements in circumstances where the easement is necessary for the reasonable use and enjoyment of a lot or common property. Implied easements allow for things such as building footings, sewerage and water pipes and other services, uninterrupted access to light and maintenance of eaves etc. even though they might need to be on common property instead of contained within the boundaries of a lot.

By contrast, an order for removal of a garage that encroached onto common property by half to one metre was made in Owners Corporation 11672 v Moore [2014] VCAT 1538 largely because the OC would bear the risk of injury to persons on the common property that may result from the door of the garage.

About the Author

Tiphanie Acreman

Recent Posts

Common property boundaries and the Water Act – who is liable for unreasonable flows of water into an apartment?

Tiphanie Acreman Date: 06-08-2019

Revised residential noise regulations

Tiphanie Acreman Date: 23-10-2018

Non-compliant cladding update

Tiphanie Acreman Date: 19-10-2018

Supreme Court confirms that OCs must carry out works to common property to avoid discrimination against persons with disabilities

Tiphanie Acreman Date: 29-06-2018

Which Prevails – the OC Rules or the Planning Permit Conditions?

Tiphanie Acreman Date: 21-06-2018

OCs may be obliged to carry out works to upgrade access for persons with disabilities

Tiphanie Acreman Date: 18-02-2018