Cranes are on the up and up
Overhead cranes are a dominant feature on many construction sites these days. Their presence tells us that things are on the rise, both literally and in terms of the health of the construction industry. But they can have a disruptive impact on neighbouring properties when encroaching into their common property airspace during the construction period.
Whose common property airspace?
The common property for a community titles scheme consists of all parts of the complex not contained within the owners’ lots.
It is collectively owned by the owners of the lots as tenants in common. [Harbour Side Resort  QBCCMCmr 160, and BCCM Act s.35(1)].
At common law, ownership of realty is considered as extending to the depths of the earth below and to the skies above, and generally includes everything in between.
It follows that a scheme’s lot owners are co-owners of the column of common property airspace stretching above the land on which their building stands. [Platt v Ciriello  QCA 33]
Common Law: Trespass by unauthorised encroachment
No one has an automatic right to swing a crane through the airspace above another building.
Unauthorised encroachment is a trespass, and relief can be readily obtained from the courts – especially for ongoing trespass.
And you can safely assume the developers are well aware of this and keen to avoid any unnecessary disruption to their project by aggrieved neighbours.
A sensible developer will always approach the neighbours for pre-emptive authorisation.
Statutory Law: The developers’ friend
Sometimes a negotiated outcome with a neighbour is not possible, and the dispute can only be resolved by litigation.
In this case, the developer may seek a court order under s.180 of the Property Law Act 1974 (QLD), ie a grant of ‘statutory right of user’ to the developer, which transcends the common law rights of the neighbours.
Negotiation is the preferred option
The UOAQ always recommends sensible and informed negotiation as the ‘first and best’ approach.
Some key points:
- You can so No. You are not obliged to give consent to an encroachment into your common property airspace, especially if the developer is being unreasonable.
But if you are the one being unreasonable, you could end up in court, lose the case and be liable for the developer’s costs as well as your own. Not smart. [Lang Parade Pty Ltd v Peluso & Ors  QSC 112]
- You are entitled to adequate compensation. The message here is about adequate compensation for what you are conceding; it is not about holding the developers to ransom for a big slice of their ‘profit pie’.
The UOAQ understands that the going rate in Brisbane is around $15,000. This is small bickies for a developer knocking up a $50,000,000 complex but can be very attractive to a body corporate committee keeping a close watch on their budget.
- It is not just about the money. There are many other issues to consider, eg safety, noise, time of day, frequency, duration of the project, access to your property, insurance and indemnity, etc.
It is common for developers to approach on-site representatives from the body corporate with a first-up, informal offer – without reference to legal representation – and which may not be their best offer.
Few unit owners (or their body corporate manager or caretaker) would have the expertise to negotiate the best possible outcome for their body corporate, an outcome that is comprehensive, reasonable and consistent with current industry standards.
The UOAQ recommends that legal advice be obtained from an experienced property/strata lawyer before agreeing to anything.
- Your legal costs should be covered by the developer. The prospect of lawyers’ professional fees may be daunting to the average body corporate and discourage them from seeking legal advice.
The good news is that it is quite reasonable for the body corporate to insist that the developer pays the body corporate’s legal expenses. If the developer wants a concession from you, it should be cost-neutral to you.
It also is reasonable – and prudent – to ‘rattle the can’ before your solicitor chalks up too many billing hours, just in case the developer decides to abandon the negotiations in mid-stream and leaves you out of pocket.
SUMMARY: Do not agree to anything until you have seen a competent lawyer, insist on the developer paying your legal costs, ‘rattle the can’ asap… and always play nice.
And finally… if the development is going up next door and they dig a whopping big hole right up to your boundary line for their basement car parks etc, talk to your lawyer about it.
Author: Bradley van Xanten, UOAQ President, Unit Owners Association of Queensland (UOAQ)