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My partner and I have been renting out a studio which needs access with a swipe key. We moved in about 10 months ago and my partners swipe key stopped working about 1 month ago. No damage to it, not broken – just stopped swiping.
After contacting the real estate and waiting over 2 weeks for a reply, I have been told that the “swipe is no longer covered under warranty and a new one will cost $220”. Which we have to pay.
Is this fair or legal or something, because when we moved in, we were told nothing about a warranty with the swipe key and seeing as it wasn’t us who broke it.
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As part of the dispute process, the OC Committee has now determined that a building access swipe/fob is NOT common property and that it provides a service that exclusively serves one lot owner and is therefore the responsibility of the lot own to repair or replace. Exclusive services are usually a lot responsibility in Victoria and in some other states.
So I’ve now applied to take this matter VCAT at my own expense.
I’m trying to assess the matter the way VCAT will and would appreciate any advice from others. VCAT handles matters in a rather structured way so apologies if the below is overly complex. But read some VCAT decisions and see for yourself.
Q: Is a swipe/fob common property? A: Even if a swipe/fob is not common property it’s the services that the swipe/fob provides that become important.
Q: What services does a swipe/fob provide? A: I can only think of two: security and access.
Q: Is the security service that the swipe/fob provides an exclusive service? A: I can’t see that it is. The security that any swipe/fob provides is in my view a benefit that all residents in the building enjoy.
Q: Is the access service that the swipe/fob provides an exclusive service? A: I think it could be argued that it is. The swipe/fob provides access exclusively for the swipe/fob holder. So on this I think the OC Committee has a point.
But the OC Act (VIC) s.47 specifically states that the OC itself must maintain certain services. Those services include a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act (VIC)1988. It then goes on to state that the easements or rights that may be implied under section 12(2) of the Subdivision Act 1988 are those necessary to provide (among other things) rights of way. So if lot owners have a right of way over common property to their lots, the OC must repair and maintain that right of way.
Q: Do lot owners have a right of way to their lots? A: I think this right of way is a fundamental of all strata schemes. Lot owners are known as the dominant tenements while the Owners Corporation is the servient tenement. As far as I know, rights of way can’t be charged for and can’t be blocked or restricted. If a barrier ( eg gate/door/access coded lift etc) is placed along the right of way the servient tenement has to provide the dominant tenement a key to that barrier.
So it’s my view that although owners would usually be responsible for services that exclusively serve their lot, the OC has certain statutory obligations to repair and maintain the services that it is obliged to provide under the Subdivision Act 1988. And that includes repairing and maintaining rights of way that owners have over the OC to access their lots.
A swipe/fob that provides a right of way access is therefore an OC responsibility to repair and maintain. And in Victoria an OC is not allowed to make rules/by-laws are inconsistent with the Subdivision Act 1988.
Sorry for the long post.
Security access devices (swipes,garage remotes, keys, fobs etc ) are sometimes lost or damaged by the user who has exclusive use of that device to access their lot.
When a security access system is installed in a new or upgraded building usually all security devices are issued at no cost to the individual lot owner and are paid for initially by the Owners Corporation.
Before implementing a security access system the Owners Corporation should decide on the cost of devices for owners wanting spare or additional devices and who should pay for the replacement when they re lost or damaged. Seldom do they go faulty after being issued.
Lost devices are a serious matter for building security and can be difficult to identify the user code (when several devices are issued to the one lot owner) and de-activate on the security access software.
Some Owners Corporations charge over $120 for each security device and this can act an incentive for users to look after them.
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@larry_vincent said:
Security access devices (swipes,garage remotes, keys, fobs etc ) are sometimes lost or damaged by the user who has exclusive use of that device to access their lot.…
Some Owners Corporations charge over $120 for each security device and this can act an incentive for users to look after them.
I agree with what you say larry_vincent. Replacement swipes/fobs bought through an OC can be very expensive even if the device itself is quite cheap. Fobs cost just $18.00 each, so the OC’s manager tells me, yet they charge $84.50 for a replacement. Some OCs charge a lot more.
My issue is who is responsible for replacing faulty swipes/fobs? That means swipes/fobs that are not damaged, lost or being purchased as an extra. Fobs/swipes that just stop working.
If an OC must provide and maintain access across a common property security system so that owners can get to their lots, shouldn’t it be the OC?
As I’m going to VCAT, I need to have the legal points (rather than opinions) supporting my view because that’s what VCAT will examine.
My VCAT appearance is scheduled for next Monday 17th November 2014.
My main submission to VCAT will be:
An OC must repair and maintain services (Owners Corporation Act 2006 s.47) including “a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act 1988. The easements or rights that may be implied under section 12(2) of the Subdivision Act 1988 are those necessary to provide: … rights of way; …”
I hope the above will be enough to establish that a swipe/fob that allows an owner to access their lots over common property is deemed a service (a right of way) by s.47 and it’s the OC alone that must maintain this service (and not individual owners).
That would mean the OC must repair faulty common access swipe/fobs at OC expense.
I’m still after any advice that will help.
@Austman said:
I’m still after any advice that will help.
My opinion is the security device is an integral part of the access system and if it fails (as opposed to being lost) it is the Strata responsibility to repair it / replace it just the same as if the lock to gain access to the complex failed the Strata would be responsible for it’s repair or replacement.
Good luck with VCAT I think you’ve an excellent case.
An update.
I won at VCAT! And even, without my asking, had my application fee awarded against the Owners Corporation (the “Respondent”).
I had other augments ready to support my case (including rights of way law) that were never even mentioned. My case was won on just one of argument – the rest weren’t needed (although the “Member” thought they were also valid, just not needed).
And that was s.46 of the OC Act. The Member considered that a swipe/fob was a chattel to the common property security system and not lot property As such the OC must repair and maintain it. It is not an exclusive service that benefits only one lot either as it’s needed by a resident to be able to enjoy the common property areas of the building. Nor can the “benefit principle” of funding be applied.
So now we know: An Owners Corporations (at least in Victoria) must pay to replace a resident’s faulty building entry system swipe/fob keys.
46 Owners corporation to repair and maintain common property
An owners corporation must repair and maintain—
(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.I don’t know if VCAT will publish the result on AustLII . I don’t know how others find out about it if it isn’t published.