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Hi
After some thoughts..
We have parking spaces that are common property with an exclusive use by-law for each unit. Our building is inside the parking levy zone and I did see the earlier post on this where the owners corporation was paying for the levy.
In our situation, a unit owner is separately renting out the parking place of which they have exclusive use to a non-resident – it is pretty clear that the levy applies.
However, the legislation specifically mentions that the owners corporation would be the owner and responsible for the levy. We have no by-law that limits parking to residents which would meet the exemption criteria in the legislation.
Has anyone dealt with this type of situation?
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I would think that the levy is the least of your concerns. You have a resident who is running a commercial enterprise from the garage. This could have insurance and security implications. Perhaps start with the security breach associated with the resident sharing access to what is supposed to be a secure garage. Your by-laws may contain support for managing this. They may also contain support for managing the commercial sub-let of common property. If the by-laws are silent on this, you could try 1) income from sub-letting common property belongs to the OC, not to a private individual and 2) we will be letting the builder insurer know about the sub-let and any additional insurance premium will be the responsibility of the individual who is causing the increased premium.
Section 139(2) of the NSW Strata Schemes Management Act says a by-law must not prohibit or restrict transfers, leases, mortgages or other dealings related to a lot. If the parking space is a separate lot or part of a lot, the OC may hit that speedbump if they try to restrict car space letting to residents only. If the space is allocated exclusive use common property (as many are) it could be a different story. Security is just as compromised, if not more so, by short-term holiday lets but they were permitted under S139 before specific laws were introduced to curb them.
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There was a case a few years ago generally known as the Elizabeth Bay Gardens dispute, which went to the NSW Court of Appeal:
- Supreme Court (first instance): Julian Edward Canny v The Owners–Strata Plan No 4983 [2018] NSWSC 80
- Court of Appeal: The Owners – Strata Plan No 4983 v Canny [2018] NSWCA 275
The building is the 15-storey, 78-apartment Elizabeth Bay Gardens at 15-19 Onslow Avenue. Parking lots were bought, sold and used by residents and non-residents from 1970 until 2014, and some sold for as much as $220,000. In 2014 the owners corporation passed a by-law that excluded non-resident owners of parking lots from using their spaces, and they were locked out. The strata committee’s by-law was based on the development consent. The 23 affected owners sued in December 2017 and won in February 2018, and the by-law was declared invalid.
On appeal, the court found that unclear wording in the development consent about which “occupants” could use the spaces had to be resolved in favour of the non-resident owners. The owners corporation was ordered to pay costs, and those costs were to be levied only on lot owners other than the respondents. We covered it here: Failed parking ban costs owners a truckload of cash. Worth noting, the excluded parkers OWNED the spaces.
I have heard of another case where the non-resident owner of a car space – I think he’d let his flat but not the parking space – and insisted on his right to continue using the common property swimming pool and gym in the building. Not sure how that ended up.
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