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Hey there brothers and sisters! Half a dozen units in our late 60s East Sydney strata of 24 have mysterious ‘exclusive use’ car spaces which are seldom spoken about. Some other units have garages on-title and some units have no garage. Our building has no visitor parking which is mighty inconvenient as it is some distance to the street.
I have done some ferreting and found an ancient document saying exclusive use of these car spaces was granted by special resolution in 1974 and registered in 1979. (Things were obviously different in those days to do with time allowed for registration.)
Is it likely this by-law would hold up if challenged somehow? And shouldn’t the beneficiaries of these exclusive use car spaces pay extra levy fees for them? They have no extra lot entitlement points and pay no extra for these spaces.
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Before you can do anything you need to find out what the current status of the complex title is and for this you need to go to the State dep responsible and obtain a current copy of the strata plans (In QLD they are called the CMS Community Management Statement) which show visitor parking, common areas and private areas. If this was done correctly in the 70’s I feel you are stuffed, but if they didn’t register the new titles that is a different ball game.
Jargon may differ between states (I’m in the ACT) but assuming things are to here, there are two ways a unit might have exclusive use: 1) before the unit plan is registered these parking spaces might have been designated as ‘unit subsidiaries’ in which case they are part of the title of the relevant units. 2) After the plan was registered a ‘special privilege’ may have been granted to some units for use of these areas of common property. They can be circumscribed in various ways by the resolution of the general meeting that granted the special privilege. EG. Exclusive use of the space may have been granted for the purpose of parking a vehicle but not for other purposes such as general storage. There might be conditions such as access by other owners if necessary for maintenance of the common property or to address a safety issue. The special privilege may or may not have been validly granted. In the ACT it used to require a unanimous resolution but now requires an unopposed resolution. I think NSW is easier with a special resolution required.
So, it will either be clear on the registered plan or it will be clear from a valid resolution of a general meeting, or it won’t have been done right.
In our unit plan we have an on-going issue because past ECs had granted special privileges over parking spaces at various times in the past 30 years believing they had the authority to do so. This was recently challenged and our legal advice was that the EC did not have this power and never could have had this power because the relevant Act has always required special privileges to be granted by general meetings. The OC could not delegate this authority when the Act specifies a particular resolution of a general meeting being required. Sorting out the mess and getting all the parking onto a sound legal footing is getting expensive because just a few owners do not accept our legal advice and (in the ACT) an unopposed resolution is required to properly grant the special privileges to reinstate what we thought was the status quo.