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[Blockedin]

Our Owners Corp. has voted by standard, not special resolution the following motion: “That the Owners Corporation resolves to formally recognise the common property area at the end of the driveway as visitor parking.”

That area is where our townhouse garden borders on and if a car would be long enough (such as a tradie with trailer or a truck, it would end up right in front of our house door. This is not only intrusive but also dangerous because any car would have to reverse a long way back out onto the street, passing 3 front doors in close range.

Our council says that cars should exit a driveway in a forward motion and that there needs to be a turning circle. Is this enforceable? Do we have to have a by-law to define where exactly the parking area is suppose to be? Is the visitors parking valid without such by-law? We’re 1 of 3 units and get constantly outvoted.

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[Jimmy-T]

There are a couple of problems with this.  Firstly, changing common property to visitor parking is a change of use that requires council development approval. Strata by-laws can’t supersede superior laws like planning regulations and you could have this blocked by council.

Secondly, changes to common property require a special resolution unless they are for sustainability or accessibility improvements.  Your OC might get away with a simple majority if they were creating a disabled space but that would have to be super-wide to qualify.

As a final thought, are any of the other owners using visitor parking for their own vehicles?

 

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[Charles]

I agree with Jimmy-T, but there may also be a minority-owner issue here.

I am not sure what your unit entitlement allocation is. If you do not hold more than 25% of the unit entitlements, you may not be able to block a special resolution. If so, the “fraud on the minority” point may become more relevant, because the issue is not just whether the majority has the votes, but whether the power is being used fairly and for a proper purpose.

In any strata scheme, the majority cannot simply use its voting numbers to impose a decision that unfairly burdens one owner or removes that owner’s practical use and enjoyment of common property. That issue can be especially important in a small scheme, where the same owners may be able to outvote the minority owner each time.

This article may be useful:

https://watsonandwatson.com.au/document-193/fraud-on-the-minority-does-it-apply-to-strata-and-owners-corporations-can-the-exercise-of-power-in-accordance-with-the-voting-rights-be-challenged

The key point is that “fraud on the minority” does not mean actual fraud or dishonesty. It can mean voting power has been used for an improper purpose, or in a way that unfairly affects the rights of another owner.

That may be relevant if the proposed “visitor parking” area puts cars directly in front of your townhouse entry, affects safety, privacy or access, or gives the other owners a practical benefit at your expense.

I would ask for:

1. The council-approved plans showing whether this area was ever approved as visitor parking.
2. Any DA conditions about driveway turning and cars exiting in a forward direction.
3. A marked plan showing exactly where the visitor space is meant to be.
4. Confirmation that this is genuinely visitor parking, not overflow parking for owners.
5. The legal basis for changing the use of common property by ordinary resolution.

I would not say this is definitely “fraud on the minority”, but it may be worth raising with a strata lawyer or in NCAT if the majority is using its voting power unfairly against some owners.

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[H.]

Good to know! 👍

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[Author]

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