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We are an older strata scheme in NSW. All our carspaces were acquired by the owners corporation passing a by-law granting Exclusive Use of a particular carspace to each lot owner. Of course, exclusive use is now referred to as a common property right.
One owner is claiming that no lot owner is allowed to lease his/her carspace to any other lot owner. The reason he has given is that the right to use each carspace was granted for the sole exclusive use of the lot owner to whom it was granted.
Many of our units are leased and each tenant uses the carspace exclusively granted to that lot.
Some carspaces are not being used either because the resident owner or a tenant do not own a vehicle. Other lot owners have more than one vehicle and have offered to lease any carspace not being used. Our owners corporation cannot afford to consult lawyers because we operate on an extremely small budget as many of our lot owners are pensioners.
We therefore need to know:
1) Is it correct that an Exclusive Use carspace cannot be leased to any other lot owner? If this is correct then:
2) Can the owners corporation pass a by-law giving each lot owner the right to lease his/her carspace to another lot owner? All lot owners have said that it’s undesirable to lease carspaces to anyone who is not also a lot owner.
We read the Flat Chat website each week but this is the first time we have had a query. We would be grateful for your help.
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“each carspace was granted for the sole exclusive use of the lot owner to whom it was granted.”
So, the manner in which the lot owner wishes to ‘use’ the space is letting it out to another resident.
Where I am, we have a similar arrangement. It is entirely up to the lot owner how they wish to exert their exclusive use. If two lot owners find it mutually convenient to use the other’s space, why should the owners corporation care. If a lot owner doesn’t need to house a vehicle and comes to an arrangement with another resident who does need to house a vehicle, who else should care?
Valid point from Sir Humphrey. But you should check the exclusive use by-law wording, as there might be a prohibition there. The exclusive use would have been recorded as a by-law so obtain a copy of your building’s by-laws and see how they are drafted. But strata law is leery of preventing any restriction on preventing commercial letting and restricting access to lot property. Efforts by Owners Corporations to prevent short-term renters from accessing Units, or car spaces has been ruled invalid when legally challenged, and this is a similar situation.
If your by-law does seem to have a restriction as you were told, then the building’s owners can amend it. You don’t need a lawyer to be involved – you can come up with revised wording, and the owners corporation only needs to pay the registration fee, (and your strata managers time for attending to the recordal), which isn’t much. It sound like you have majority support.
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