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I have just moved into a newly completed apartment block. We have three commercial spaces/shops on the ground floor that have been tenanted out to food outlets/ cafe/ restaurants by their respective owners. Each have local council approval for a specific number of tables outside their premises. These tables are on common property owned by the Strata not the actual footpath. Can the body corporate charge rent for theses tables for the use of the common property.
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Unless there is a by-law in place allowing the use of the common property, then the answer is yes.
In fact, there may be an insurance issue. If someone as injured in this area due to unapproved but ignored use of common property, the Owners Corp could be to some extent liable.
Your owners corp needs to reach a formal, by-law supported agreement over the use of common property, with the commercial owners. Whether or not this includes rent for the space is a matter for owners to decide. Mor important at this stage is the question of responsibility for the safety and wear and tear of the space.
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.
Sandra – an interesting question, where if you’re in NSW I’d say YES on the basis that an Owners Corporation (O/C) may, by way of a special resolution passed at a General Meeting, permit an Owner to exclusively use a part of its common property OR grant them a licence to use that property; both methods may include conditions such as a permitted assignment to a lessee, fees payable to the O/C, and a process to review those.
Given the complications that can arise from exclusive use particularly if an O/C wishes to at some time revoke its earlier decision, I’d recommend a licence to the Owner/s of the commercial lots, worded in such as way as to permit conditional assignment to their lessees under Sect 65B of the NSW Strata Schemes Management Act (1996).
Your O/C will need some legal advice on this, as the conditions of any licence would need to be complementary to and not in conflict with the form of the Consent issued by Local Council, whose Legislation is in legal terms “superior” to (and therefore overrides) any granted by an O/C even if supported by a Special By-Law.
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