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A bitter dispute over who has the right to use a shared terrace between two neighbors in one of Sydney’s most exclusive suburbs has reached the New South Wales Supreme Court.
Marie Barter is suing her neighbors Joshua Theunissen and his wife Michelle over an “unfortunate” dispute over who has the right to use an 800 sq ft terrace which sits between their two adjoining properties in Mosman.
The two properties, estimated to be worth more than $3 million each, sit next to each other on the same land after being divided into two lots more than 30 years ago.
Mrs Barter can access the roof via a skylight and a ladder in her ‘battle ax block’, while the Theunissens can access through sliding glass doors at the back of their house.
Marie Barter (pictured above) is suing her neighbors Joshua Theunissen and his wife Michelle over an “unfortunate” dispute over who has the right to use a large terrace, measuring 78 square metres, which lies between their two adjoining properties in Mosman , in lower Sydney. North Coast
The court heard that on one occasion Mr Theunissen and his wife (pictured) called the police, claiming that Ms Barter and her partner were “trespassing on the roof terrace”.
The court heard that on one occasion Mr Theunissen and his wife called the police, claiming that Mrs Barter and her partner were “trespassing on the roof terrace”.
They also alleged that Ms Barter’s partner had assaulted Ms Theunissen.
In response, both sides installed CCTV cameras on the roof terrace to “monitor” each other’s activity.
Ms. Barter’s legal action, first reported by news.com.auintended to establish a “declaration” that the Theunissens do not have the exclusive right to use the terrace.
The consultant objected to Theunissen allegedly placing netting over his skylight to prevent him from accessing the roof.
“Mrs Barter also objects to the Theunissens placing various objects on the roof, including a basketball hoop, an eight-person octagonal table, two decorative blue ceramic vases, other potted plants and two gas heaters,” Judge Mark Richmond wrote in his ruling.
He also took issue with Theunissen’s son playing basketball on the roof terrace, which “causes loud, repetitive noises that Mrs. Barter hears throughout her home” and how the couple allegedly “frequently played loud music from the rooftop”.
The Theunissens argued that they were entitled to exclusive use of the roof terrace and that Ms Barter’s skylight was not added until later.
“They claim that, if the roof terrace were shared, this would impermissibly interfere with their own right to use and enjoy the roof terrace for recreational purposes,” Judge Richmond said.
However, Judge Richmond ultimately ruled that the roof terrace was a shared space, suggesting it was possible the warring neighbors could both enjoy a “drink on a summer’s night”.
The two properties, estimated to be worth more than $3 million each, sit next to each other on the same land after being divided into two lots more than 30 years ago (pictured).
The 78 square meter rooftop can be seen to the right of the aerial shot above.
“In principle, there is no reason why each of them could not use the roof area for that purpose, as it is large enough for each to enjoy it without unreasonably interfering with the other’s use,” Judge Richmond noted.
However, he ruled that both neighbors’ CCTV cameras constituted an “actionable nuisance.”
WhatsNew2Day Australia has contacted both parties for comment.
Legal costs between them will be decided at a later date.
