Exclusive Use By-Laws in new Act

@Fey Knows said:
Could some kind, clever Flat Chat expert please tell a newby where to find rules about Common Property and Exclusive Use By-Laws in the new Strata Schemes Management Act 2015? Hope it’s an easy question.  

That is a very non-specific question and so we can give only a general answer – and that’s contained in these sections of the Act, below.

Otherwise, you will find links to all the relevant legislation HERE.

112 Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution.(2) A licence may be granted subject to terms and conditions.
Note. Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.

Part 7, Division 3
By-laws conferring rights or privileges over common property

142 Common property rights by-law
For the purposes of this Act, a common property rights by-law is a by-law that confers on the owner or owners of a specified lot or lots in the strata scheme:
(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or
(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes), or that changes such a by-law.

143 Requirements and effect of common property rights by-laws
(1) An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges.
Note. Any addition to the by-laws will require a special resolution (see section 141).
(2) A common property rights by-law may confer rights or special privileges subject to conditions specified in the by-law (such as a condition requiring the payment of money by the owner or owners concerned, at specified times or as determined by the owners corporation).
(3) A common property rights by-law may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.
(4) After 2 years from the making, or purported making, of a common property rights by-law, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.

144 Common property rights by-law must provide for maintenance of property
(1) A common property rights by-law must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners of the lots the responsibility for that
maintenance and upkeep.
(2) Any money payable under a common property rights by-law by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements of their lots unless the by-law otherwise provides.
(3) To the extent to which a common property rights by-law makes a person directly responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, any common property, it discharges the owners corporation from its obligations to maintain and repair the property under this Act.

145 Common property rights by-law binding on owners for time being
(1) A common property rights by-law, while it remains in force, continues to operate for the benefit of, and is binding on, the owner or owners for the time being of the lot or lots specified in the by-law.
(2) If a person becomes the owner of a lot when, under a by-law or under this subsection, a former owner is liable to pay money to the owners corporation, the person who becomes the owner is jointly and severally liable with the former owner to pay the money to the owners corporation.
(3) Any money payable by an owner to the owners corporation under a common property rights by-law or under subsection (2) may be recovered, as a debt in a court of competent jurisdiction, by the owners corporation.

@Fey Knows said:
The By-Law being proposed where I am, doesn’t mention the Owners Corporation or those who will be granted Exclusive Use needing to ‘provide maintenance’.  

Then it will be invalid.  The by-law must state who is to maintain the common property.  Failure to include that means the owner would lose the exclusive use rights if it was challenged.

Section 144 (extract below) gives the option of maintenance being the responsibility of either the OC or the lot owner.

Any sensible OC would choose option (b), but one or the other has to be chosen or the by-law has no legal standing.

144 Common property rights by-law must provide for maintenance of property
(1) A common property rights by-law must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners of the lots the responsibility for that
maintenance and upkeep.