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Hi,
We’ve recently purchased a unit. We are intending to rent it but would like to use common property grounds to observe fireworks for NYE for example. Is there any legal impediment to doing that, given that tenants would also potentially be using the common areas at the same time?
Minakimoo
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Replies
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Minakimo,
You say ‘intending to rent’ so it appears you haven’t entered into a lease agreement yet.
I hope there is a lawyer who specialises in this are who can give you a more definitive answer but my view is for a standard lease, no you don’t have a right to the common property. For the duration of a standard lease you assign all property rights to the tenants.
Having said that, I couldn’t see a barrier to drafting a lease with a clause allowing you access for your purpose but I have no idea what form that clause or condition would take.
I don’t know about a (NSW) Residential Tenancy Agreement giving tenants “rights” to anything other than the area covered by the Lot that they’re occupying, or that any additional clause could be incorporated in that document without the tenant’s agreement, but it’s generally (and perhaps legally) accepted that common property is for the use of residents and their guests.
Surely it wouldn’t be too hard for you to become the “guest” of your tenant or of another resident on occasions such as the recent fireworks; or did someone perhaps raise this as an issue last Tuesday?
Hi Whale,
I am not talking about any additional clause which could be incorporated in a (NSW) Residential Tenancy Agreement (a lease) document without the tenant’s agreement. It would be just another condition of a lease contract that a tenant could or doesn’t have to agree to (if they don’t agree they just don’t enter into the contract and look elsewhere). I don’t see any barrier to an owner offering such a condition, as an owner when I rent my unit I have a ‘no smoking’ condition in any lease I draw up.
I am not a specialist property lawyer but why wouldn’t a lease also give tenants rights to common property use? By restricting a tenants rights to a lot wouldn’t that be effectively what is done? It would appear a strange result to me if a tenant (resident as you point out) didn’t have rights to the enjoyment of common property.
I would agree that the best, most amicable and sensible outcome would be “to become the “guest” of your tenant or of another resident on occasions” such as New Year’s Eve. However that depends upon the largess of others and I was outlining the way an owner could perhaps secure theirs rights to occasions where, perhaps they were not confident of being accepted as a guest.
We could argue the legalities of this situation in and out but the realities of strata living are you can do whatever you want until someone objects to it. There are no StrataKops patrolling buildings in search of miscreants on whom to slap Notices To Comply (more’s the pity).
A landlord can reasonably expect to have some minimal level of access to their buildings (although there are regulations about how and when they can inspect their units) and turning up once a year to watch the fireworks is unlikely to cause a problem … unless someone takes exception to it.
Personally, I’d be in favour of landlords actually visiting their buildings now and again, whatever the pretext, because that is maintaining some direct communication that rental agents don’t always want.
Don’t abuse the privilege – and treat it as a privilege rather than a right – and i can’t see any problem.
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