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.