Can tenant let car space for storage?

You would need to read your bylaws to see if they have broken any of them but from the standard bylaws their is this:

17. Appearance of lot
Unless an owner or occupier has the written permission of the owners corporation, they must not keep anything within their lot that is not in keeping with the appearance of the rest of the building.

So if this wreck is an eye sore visible from the common area you could ask the tenant to do something about it.

@Stratafied said:
Some strata plans also have by-laws that restrict rental of parking to owners or tenants of the strata plan so that may be something worth checking.  I think they may have an argument that it is a car however if there are no restrictions to the contrary regarding who they can rent to.

But if the development consent for the building does not prohibit such rental arrangements, then I think it is at least arguable that the by-law would offend s 49(1) of the Strata Schemes Management Act 1996, which states that “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.”

I have, however, seen such by-laws and have been curious about them.

@JimmyT said:
No, it isn’t arguable.  Section 49, to which you refer, doesn’t even prevent owners corps from passing by-laws preventing the lease of apartments as short-term lets

https://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l14/annual_report_1112.pdf

Look at page 37

“A high-rise apartment building leasehold scheme located in Sydney’s Darling Harbour was managed by a large hotel group for some time, and a number of lot owners had made their apartments available for short-term holiday leases through the hotel group. This situation changed when the hotel group vacated the building and an extraordinary general meeting of the owners voted to adopt a special by-law to prevent short-term leases and serviced apartments. The special by-law prohibited the use of lots for commercial or retail purposes, including the use of lots as serviced apartments or short-term rentals.

A lot owner made an application for Adjudicator orders to repeal or invalidate the special by-law under section 157 or 159 of the Act, so that they could continue to lease their apartment to tourists and visitors.

The owners corporation’s written submission stated that the use of serviced apartments and short-term leases created security, health and safety issues as well as adversely affecting the general amenity of the building.

Section 159 of the Act allows an Adjudicator to set aside a by-law if the owners’ corporation did not have the power to make the bylaw. However, section 49 of the Act also provides that a by-law cannot prevent any dealings relating to a lot.

The Adjudicator considered that the new special by-law led to restrictions that were not compatible with section 49, and was therefore outside the by-law making power of the owners corporation pursuant to section 159 of the Act…”

Not arguable? Or, would this be considered “scratching your amateur attorney itch”?

@mini said:

@JimmyT said:
No, it isn’t arguable.  Section 49, to which you refer, doesn’t even prevent owners corps from passing by-laws preventing the lease of apartments as short-term lets

“A high-rise apartment building leasehold scheme located in Sydney’s Darling Harbour was managed by a large hotel group for some time, and a number of lot owners had made their apartments available for short-term holiday leases through the hotel group. This situation changed when the hotel group vacated the building and an extraordinary general meeting of the owners voted to adopt a special by-law to prevent short-term leases and serviced apartments … The Adjudicator considered that the new special by-law led to restrictions that were not compatible with section 49, and was therefore outside the by-law making power of the owners corporation pursuant to section 159 of the Act…”

Not arguable? Or, would this be considered “scratching your amateur attorney itch”?

 

Absolutely and here’s why.

This is a very specific case where a building that originally had a DA and a Strata Management Statement allowing short-term lets was now being reclassified as long-term residential only. THAT is in breach of Section 49 because, at least in part, it is retrospective and discriminates against people who have bought into the building in the good faith and reasonable expectation that they would be able to let their apartments as short-term rentals.  

That is completely different from a unit block that is already zoned permanent residential has a Strata Management Statement that says nothing about allowing short-term lets and where the owners corporation is allowed to use its statutory instruments to manage its community.

This is the danger of trawling the internet looking for cases that kind of, just about, almost, nearly support your argument.  I say again, there are websites out there that will gladly accommodate reams of dubious advice at any length and of any quality. If you need an outlet for your itch scratching, please go there because this is not the place for it.

However, if you can find one case of a residential only building that has had an attempt to create a by-law forbidding short-term lets overturned by a Section 49 submission, please let us know.  

And, by the way, I got my information on Section 49 from Cathy Sherry who is a senior lecturer in strata law at UNSW and, according to the UNSW website, is “a leading Australian expert on strata and community title” and “provides advice to government and the private sector on the complexities of collectively-owned property.”  

The owners corporation has the right to restrict who comes and goes on common property to people who are registered owners or tenants or their bona fide guests.  Renting a car space to an outsider can be a serious breach of security and safety in a strata building since there is no recourse under law if that unregistered sub-tenant damages common property or behaves in breach of by-laws.

@Austman said:

@JimmyT said:
The owners corporation has the right to restrict who comes and goes on common property to people who are registered owners or tenants or their bona fide guests.  Renting a car space to an outsider can be a serious breach of security and safety in a strata building since there is no recourse under law if that unregistered sub-tenant damages common property or behaves in breach of by-laws.

In Victoria there is no automatic requirement to give an OC any tenant information.  The OC need not even be informed if the property is tenanted at all.  

Absolutely right. The law in NSW says you have to inform the OC who tenants are but that is pretty much ignored.  If it wasn’t, we’d find it a lot easier to deal with overcrowding.

The OC can handle security as it sees fit but in doing that can it stop an owner or the owner’s tenant from accessing their lot?   That lot might be just a car space.

The OC can’t stop an owner from accessing their lot but renting it to an outsider may be a very different kettle of fishy business. The very first of the model by-laws says this:

1.1 Health, safety and security of lot owners, occupiers of lots and others

A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.

An owners corp could add a “no outsiders” clause to that rule on the grounds that the safety and security of the building and its residents could be compromised by allowing access to parking to non-residents whose identities are unknown?  

It would be hard to justify, however, of the parking are was open and easily accessible on foot, for instance.

That said, there is a clause in the Act that says OCs are allowed to created rules to manage common property and individual lots provided they don’t contravene other laws.  That’s a lot of wriggle room right there.

@JimmyT said:

That said, there is a clause in the Act that says OCs are allowed to created rules to manage common property and individual lots provided they don’t contravene other laws.

And that, I think is the problem.  I see that VCAT throws out a lot of OC special rules because they often do contravene other laws.

Other laws do exist that allow strata owners the right to lease their lot in the same way as other freehold property owners and to have access to their lots for themselves, their tenants and visitors via common property.  So I can’t see that an OC can actually prevent an owner from leasing out a car space (especially if it’s a separate lot) or prevent access to that car space for the tenant that leased it.  Are there any xCAT cases that could be referenced that show otherwise? 

But an OC can ban storage in private lot car spaces – that seems well proven in VCAT.  Interestingly, the OC can’t touch the stored themselves.