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While common areas are the foundation of body corporate schemes, often, certain areas can be reserved for the exclusive use of an individual lot owner or owners. Called exclusive use (EU) areas, these include parking spots, courtyards, storage rooms, or rooftop terraces. Although technically part of the common property, exclusive use by-laws grant specific owners the right to enjoy these spaces privately.

In this article we look at exclusive use by-laws, what they govern and how they are established.

What are exclusive use areas and by-laws?

Exclusive use (EU) areas are those allocated for the exclusive use of one or more owners within a body corporate scheme. While technically common property, they are allocated for the specific benefit of the individual owner or owners.

These might include parking spaces, courtyards, storage areas, or rooftop terraces.

Exclusive use by-laws are the legal instruments that allocate and control these areas, including your rights and responsibilities as a benefiting lot owner. The by-laws are registered with Titles Queensland, and, unless changed, are binding on all current and future owners of the lots to which they relate. They can only be created, amended, or revoked through a resolution without dissent at an AGM or EGM.

Why is it exclusive use?

Exclusive use area allocation is used by developers for two primary reasons:

  1. Flexibility – the areas can be allocated after the development plans have been prepared and in some cases, up to 12 months after the body corporate has been registered. This flexibility means they are not automatically assigned to the apartment lot and title, and instead, can be purchased separately by owners based on their requirements.
  2. Exclusive access – allows exclusive access to areas that cannot technically be owned under that development type, for example a roof top terrace.

In a building format plan townhouse scheme, each owner owns the interior of the townhouse building, but not the land. To make the courtyard for each townhouse private, that area of land is allocated as an exclusive use to the applicable townhouse.

How exclusive-use by-laws are made

Creating an exclusive use by-law is a significant process, with stricter regulations, in comparison, to other by-laws. This ensures that the allocation of common property to a specific lot is handled with the utmost care and reflects both the interests of the body corporate and the individual owner.  

Under the Body Corporate and Community Management Act 1997, creating an exclusive use by-law involves a structured process to ensure fairness and legal compliance:

  1. Body corporate resolution: The body corporate must pass a resolution without dissent to record a new Community Management Statement (CMS) that includes the exclusive use by-law. A resolution without dissent means no voter has opposed the motion, ensuring unanimous support.
  2. Owner agreement: The lot owner benefiting from the by-law must agree in writing or personally vote in favour of the resolution. This step is crucial, as it confirms the owner’s consent to the exclusive use allocation.
  3. Registration with Titles Queensland: After the resolution is passed, the body corporate must record the new CMS, including the exclusive use by-law, with Titles Queensland. This must be done within three months of the resolution’s passing. The by-law only takes effect once this registration is complete.

Removing an exclusive use by-law

Once established, removing or altering an exclusive use by-law is as complex as creating it and requires a structured legal process

Under the Body Corporate and Community Management Act 1997:

  1. Body corporate resolution: The body corporate must pass a resolution without dissent to record a new CMS that changes or removes the exclusive use by-law.
  2. Owner agreement: The lot owner benefiting from the by-law must agree in writing or personally vote in favour of the resolution. This ensures that the owner consents to the removal of their exclusive rights.

Reference : https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/exclusive-use-by-law

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