Question:
Our unit is adjacent to a small courtyard that is exclusively used by our family. We wish to secure our exclusive use of the area. What are the available options for us to achieve this?
Answer:
There are three potential avenues for acquiring the exclusive use of the courtyard.
Firstly, the Plan of Subdivision may be modified to purchase the land from the Owners Corporation. While this is the most enduring option, it is also the most complex and costly approach.
Alternatively, the desired common area may be leased. This may be for a short amount of time or for a lengthy period, such as 99 years.
Finally, licensing the land allows for use but with several conditions. The license is limited to the duration of the unit’s current ownership. In addition, the license may be terminated by the Owners Corporation at any time.
While a sale or lease of common land provides the purchaser or lessee with exclusive use, licensing may offer either exclusive use or permission to use without exclusive use, such as granting permission to park a vehicle without restricting other owners from accessing the area.
Lessees and licensees are responsible for maintaining the leased or licensed common area. There are further conditions which are usually recommended by the lawyer for licenses and leases, after discussing options and owner preferences.
Obtaining exclusive use of common land requires a unanimous agreement of the other owners, while leasing or licensing common land necessitates a special resolution that requires at least 75% of owners to vote in the affirmative. If this cannot be achieved, the resolution may still be able to pass as an Interim Special Resolution. Please refer to our article on Unanimous Resolutions, Special Resolutions, and Regular Resolutions for further information.
The sale, lease, or license of the common area may be granted for a nominal amount, such as $1, or based on market value. This decision is at the discretion of the owners.