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The strata Act provides for the Owners Corporation (and that means you, the common people) to have a statement of all expenditure, holdings and estimates of its financial dealings.
Have a look at section 3 (below). I reckon if there isn’t full disclosure, the treasurer and strata manager are not fulfilling their duties under the Act, regardless of whether or not the are up to something dodgy.
Even if they are, look on the bright side: you may be part owner of a new almond plantation, kiwifruit farm or mobile nail salon.
Division 2 Levy of contributions
75 Estimates to be prepared of contributions to administrative and sinking funds
(1) An owners corporation must, not later than 14 days after the constitution of the owners corporation and at each annual general meeting after that, estimate how much money it will need to credit to its administrative fund for actual and expected expenditure:
(a) to maintain in good condition on a day-to-day basis the common property and any personal property vested in the owners corporation, and
(b) to provide for insurance premiums, and
(c) to meet other recurrent expenses.
Note. Recurrent expenses would include such regular expenses as insurance, water charges, electricity charges, carpet cleaning, lawnmowing services and the like and minor expenses relating to maintenance of the common property.
(2) An owners corporation must, at each annual general meeting, estimate how much money it will need to credit to its sinking fund for actual and expected expenditure:
(a) for painting or repainting any part of the common property which is a building or other structure, and
(b) to acquire personal property, and
(c) to renew or replace personal property, and
(d) to renew or replace fixtures and fittings that are part of the common property, and
(e) to replace or repair the common property, and
(f) to meet other expenses of a capital nature.
Note. Expenses of a capital nature would include expenses in relation to major repairs or improvements to the common property or personal property of the owners corporation, such as painting of a building or replacement of roofing, guttering or fences and the like.
(3) When estimating amounts needed to be credited to the administrative fund or the sinking fund the owners corporation must have before it, and take into account, a statement of the existing financial situation of the strata scheme and an estimate of receipts and payments.
(4) In estimating amounts to be credited to the sinking fund, an owners corporation that is required to prepare a plan under section 75A is to take into account anticipated major expenditure identified in the plan for the 10-year period to which the plan relates.
(5) An owners corporation of a large strata scheme must include in the estimates prepared under this section at an annual general meeting specific amounts in relation to each item or matter on which the owners corporation intends to expend money, or on which the owners corporation is aware money will be likely to be expended, in the period until the next annual general meeting.
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@adro said:
Chris Surely it is too late to raise a by-law once the 7 are already installed in the unit?It may be too late for that unit but sooner or later the tenancy will change. Also, you don’t want your building to get a reputation for being a soft touch when it comes to over-crowding. If you think it might be an issue in the future, get it done now. Meanwhile, you could be talking to your local council about the overcrowding as they may have policies already in place.
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Austman said:
… the OC has a right to make rules on “Behaviour of owners, occupiers and invitees”? (at least they can in Victoria) And in Victorian model rules: “An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.”
You’re right, of course, but there’s a big difference between the legality and the practicality. As you say, there are potential sanctions against the owner under the clause you quote (or its NSW equivalent) of being responsible for the behaviour of your guests.
But it’s hard enough to moderate the behaviour of residents whose own behaviour is bound by by-laws without pursuing people who are one or more degrees of separation away from the actual culprits.
If the car space renter, for instance, allows his or her mates to tail-gate them into the car park and park in visitors’ parking while they go out for the night, who’s going to chase the car space owner? And if you do, what are they going to do about it? This isn’t fantasy or worst-case scenario, by the way. Anywhere that car parking is at a premium will have these kinds of issues.
As for the legality of banning non-resident parking, it is in the local council planning approvals of some inner city buildings that their parking is strictly for residents and bona fide visitors only. They also insist that visitor parking is kept exactly for that and not rented or sold off.
And to follow your argument about visitors to its logical conclusion, could you rent access to the gym and swimming pool too? And what about double-dipping landlords who rent out their apartments but keep a key so they can use the facilities?
Getting back to the question on whether or not it’s legal to have a by-law forbidding non-residents from renting car spaces, the following section of the NSW strata Act would tend to back you up:
49 Restrictions on by-laws
(1) By-law cannot prevent dealing relating to lot
No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.This ‘dealing’ law has been used (with varying degrees of success) to argue in court in defence of everything from short-term rentals to over-crowding apartments and would seem to support your thesis that you can’t prevent people from renting their car space (provided it isn’t common property) to whomever they want.
But if it became an issue, I’m sure the Owners Corp would argue that there are superior laws, including planning law, that would forbid there being, for instance, a commercial car park in the building.
And let’s not forget the Owners Corporations are not some faceless entity – they are the majority of people in the building and if they would rather not have complete strangers in their car park, I reckon they are allowed to make it so.
One final thought from the dim recesses of my memory. I used to live in an apartment block in Kings Cross that had been allowed to build a few extra floors in exchange for providing parking for the Housing Commission block across the laneway.
Many of the HC residents didn’t have cars but they rented their spaces out. Remember, this was Kings Cross and right on one of the most notorious laneways in the area and we had no idea who ws coming and going from our building. We actually had one guy living in a parking cage.
The way the building was designed, access to the car park allowed free access to every floor of the building. We needed to beef up our security anyway but rather than install an impossibly expensive exclusion system, we put in electronic keys just for the front and garage doors and announced an audit of all parking. Residents had to match their key with their car space number and their car rego.
The first thing that happened was that the HC car spaces all but emptied. The next thing that happened was we got a very heavy letter from the Housing Department demanding something like 30 front door keys to be handed to them for distribution to their tenants – no registration required.
We said, “no registration, no keys” so they took us to the CTTT where the adjudicator decided that the security of our homes was more important than the freedom of our neighbours to rent out their car spaces to whomever they wished.
We weren’t preventing them from accessing the spaces – we just wanted to be sure they were accountable. By the way, there were two or three HC tenants who willingly took part in the audit and continued to park their cars in our building, no problem.
This was about 15 years ago but I’d be very surprised if the attitudes at the CTTT have softened any to uncontrolled parking.
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I was a bit skeptical at first but look at it this way, the median price for units in my building is about $750K and the average price for a car space is about $60K. I would put the value of non-car storage space at about one-third to a quarter of that which would work out between two and three percent.
Another way to look at it is that eight cubic metres of commercial storage space in the Eastern Suburbs will cost about $230 a month. It may differ in your area and you wouldn’t be charging commercial rates but it does give you an idea of the intrinsic value. Have a look at the Kennards website to make your comparison for your area and see how it adds up.
One thing I do know, you don’t realise how valuable storage space is until you move into an apartment that doesn’t have any. I think the pro-storage people may be gilding the lily a little, but they do have a point.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
kiwipaul said:
Morality don’t come into it just the law. Your argument that because EC doesn’t enforce one bylaw they cannot enforce any bylaw is seriously flawed. If that was the case any complainant would only have to show at CTTT that EC failed to enforce bylaw x so they are unable to now enforce bylaw y.
Firstly, I never said “because EC doesn’t enforce one bylaw they cannot enforce any bylaw”, nor would I. These are your words, not mine.
I was talking specifically about mediation (which is why I used the word ‘mediation’) and in that case morality certainly does come into it. Mediation is an attempt to reach a compromise in the hope than time and money aren’t wasted in the nitpicking of the law when a solution that would suit everyone is there to be had. It is far from “just the law”.
So, in this case, I would be saying, you enforce the by-laws against parking in visitors parking and I will only rent my car space to residents.
By the way, if there is no specific by-law against renting car spaces to non-residents, and there are no other mechanisms, such as requiring guests to the complex to be accompanied at all times, or over-arching by-laws about maintaining security, this owner can tell the EC to take a jump.
One of the most fundamental aspects of a Notice To Comply is that the by-law that has been breached has to be listed. No by-law, no breach.
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Austman said:
Controlling general security and resident behaviour is one thing. And if a non-resident caused problems there would be a case to take action against them.
How does an Owners Corp take action against non-residents? It’s hard enough enforcing by-laws against those who are supposed to be bound by them. Non-resident carpark lessees have probably signed nothing and even if they had it would have no legal effect and carry no conceivable sanctions. One of the problems in many open complexes (especially near rail stations) is non-residents parking illegally on common property where the local council parking wardens say “not our problem” and the Owners Corp has no comeback because they aren’t allowed to clamp or tow.
But, to reiterate, maintaining security is the ‘excuse’ some buildings might use for excluding non-resident parking – it need not necessarily be the actual problem that they are concerned about.
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I had a horrible feeling you were going to say that!
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Boronia said:
Why would a person with a lease to a car space be any more of a “security risk” than a tenant in the residential section?
I was referring to a mechanism that could feasibly be in place to prevent outsiders from accessing rented car space.
But since you raise the question, I think the problem with outsiders renting car spaces is that they have no long-term commitment to the place, are largely unaccountable (because they are not covered by the by-laws in any effective sense) and the people running the building usually don’t even know who they are.
In my building, access to one car space means access to three levels of parking as well as common areas. I think the increased risk from people whom you don’t know and can’t be traced is fairly obvious. At the very least, there is nothing to stop the car park lessee giving access to mates. None of these people are subject to by-laws in any meaningful way so the potential for problems is pretty clear.
The Act says you have to give notice of any lease or sub-lease of a “lot” to the Owners Corp, including the name of the tenant. I don’t see any reason why that wouldn’t apply to car spaces, especially if they were separate lots on the plan, but I have never heard of it happening.
I don’t want pass keys to my building going “wild” to the general public and I don’t want unknown and unaccountable individuals having access to my car park. If you live in an area where security is an issue, you don’t want strangers having free access to your building, end of story.
And I suspect that former tenants who’ve held on to their pass keys may have been a problem you were referring to – if so, I reckon that strengthens my argument and it’s certainly why more and more buildings are turning to some form of electronic access that can be cancelled when residents move on but take their keys with them.
But I do agree with the original poster that forbidding outside rentals while allowing residents to park freely in visitor’s parking is a nonsense and the EC concerned need to take a look at their priorities.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
Hey, Strugs, would you consider a townhouse? The best of both worlds – or the lesser of two evils?
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Many unit blocks in Sydney ban letting car spaces to non-residents and a by-law forbidding it being the most obvious mechanism for doing this.
Also, some blocks in certain local council areas are prevented from doing this under the terms of their Development Approval. Another less direct by-law would be one demanding that owners don’t compromise the security of the building or that their ‘guests’ are accompanied at all times.
However, this owner would indeed be morally entitled to demand that the EC fix visitors parking first before they came after her. Two wrongs don’t make a right but she would have a pretty compelling argument to take to mediation if she was issued with a Notice To Comply.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
Kiwipaul said:
Strata Manager shouldn’t be making these decisions. He works for the owners and they have the final say. SM can advise owners of the law regarding issues (assuming he knows which it appears he doesn’t).
Once again, it depends on what powers have been delegated to the Strata Manager. You can’t assume that the strata Manager hasn’t been given full permission to make these decisions on behalf of the Owners Corp. You don’t know this unless you have seen the contract between the SM and the Owners Corp and any related decisions that have been made at AGMs.
However, you are right in so far as the Strata Manager shouldn’t have made the decision to do nothing. There is no question that the Owners Corp not only has responsibility for Common Property repairs but they have a legally enforceable duty to carry them out, regardless of any other considerations (such as defect claims and the like).
If Danny54 wants to press the case he can take it to the CTTT who will more than likely order the work to be done..
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The law allows investment of your funds (see below) but the EC is entitled to ask for proof of where it has been invested and how those investments are faring. At the very least the investments would have to be “arms length” and legal and if there is concern then the EC needs to get on top of that immediately.
It’s probably time for someone to ask some pertinent (or even impertinent) questions and, at the first sign of any dogy dealings, insist that the money be returned to the scheme’s bank account.
This is what the law says:
73 Can money in administrative fund or sinking fund be invested?
(1) An owners corporation may invest any money in its administrative fund or sinking fund in any manner permitted by law for the investment of trust funds or in any prescribed investment.
(2) Any interest received on an investment made under this section forms part of the fund to which the investment belongs.
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Most of what’s in the document applies to most buildings but every strata scheme is different in some way and there may be instances, such as you have identified, that require some tweaking. The way to do that is to either remove or change the items in the document to suit your circumstances and then approve the document ‘as amended’ or you could have a separate by-law, for instance, making windows and balconies part of common property, which brings your building into line with the memorandum.
The memorandum is not a one-size-fits-all solution and it’s not a law (until you make it a by-law). There’s nothing to stop you changing it to suit your strata scheme and it will solve a lot more problems than it creates.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
Something that’s just occurred to me – is this complex really strata or is it Company Title? If it’s the latter, then a whole different set of rules pertain. If it’s strata, you will also need to look at when the strata plan was registered, by whom and under what basis. These buildings are all pre-1940. Strata law didn’t exist before 1962 (although many Company Title buildings have changed to strata since then).
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