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I am in a block of 21 units; each has one parking space, and there are 8 “visitor” spaces with one set up as a car washing bay. I am the only owner-occupier in the block.
Needless to say, the tenant residents have taken over these 8 spaces. About 75% of the units are owned by the same person (the OC chairman), who has no interest, or intention, of policing By Law 2, as he is quite happy for his tenants to use them. Warning notices are ignored, with this owner’s collaboration. As a result there is rarely a space for bona-fide visitors and access to the car wash is limited (one tenant parked in it for 6 months while he went overseas). We have a set of storage cages within the carpark, and this owner has even suggested removing them to give him more parking spaces
What would be the best way of forcing this issue? He has already used his majority to reject a motion to have tenants “obtain permission” (so that we at least know who owns individual vehicles), and a more recent motion to enforce the By Law was not included in a meeting agenda on the grounds he never received it.
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With one owner having such a large majority it sounds like you are always vulnerable to ‘oppression of the minority’, a well established legal concept, I gather. If a reasonable motion were put but fails, I would expect you could go to the Tribunal seeking an order to give effect to the failed motion on the grounds that opposition to the motion was unreasonable. The ACT Unit Titles (Management) Act makes it explicit what sorts of orders the Tribunal can give. Perhaps NSW has a similar provision. So, perhaps you could work out what would be reasonable with respect to parking with the other minority owners, put the motion, expect it to fail, but then seek an order to have it ‘given effect’ by the tribunal.
Section 138 allows you to take an issue to NCAT to get an adjudication where an Owners Corp (or EC) has done nothng or refused to do anything about a breach of by-laws. I would think that is precisely how you would force the issue.
138 General power of Adjudicator to make orders to settle disputes or rectify complaints
(1) An Adjudicator may make an order to settle a dispute or complaint about:
(a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or
(b) the operation, administration or management of a strata scheme under this Act.
(2) For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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