Flat Chat Strata Forum Common Property Current Page

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  • #8607
    Basil Oregano
    Flatchatter

      Greetings, Christmas Greetings’, in fact.

      Where I live, when the building was new 40 years ago, 10 units were each given Exclusive Use of 10 outdoor car spaces through creation of a Special By-Law.

      Other units have garages on title, other units have no car space or garage. There are 34 units.

      The units with the Exclusive Use car spaces pay no extra levies for them (and have no extra unit entitlements). These units are bought and sold with the expectation of having a ‘car space’.

      The problem is the car spaces need to be repaired / spruced-up because the concrete is cracked in places and, of course, the owners who don’t know any different, expect the wider Owners Corporation to pay for everything. I have said it’s time for these lucky owners to pay more levies to reflect their car spaces and also pay for the repairs needed. But I have also suggested it is probably time to make their ‘ownership of the spaces ‘ more formal, which I thought they would jump at. Not so, all this all has made me about as popular as… well, you can guess.

      Am I right? Shouldn’t they pay for the repairs to THEIR car spaces which make their units more valuable and shouldn’t they pay extra levies for them? (Off street parking spaces are more desirable at our strata than the average, for numerous reasons.)

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    • #17436
      Jimmy-T
      Keymaster

        Basil

        Merry Christmas to you too. You haven’t told us where you live so we’ll have to assume NSW.

        It sounds like your lucky car park owners want to have their cake and eat it, whether it’s Christmas or not), by not wanting to pay for the car spaces but requiring the other owners to repair them.

        First you need to check with the original strata plan to see if these car spaces are common property or part of their allocated private space. If they were given exclusive use as part of a special resolution, there may well be conditions that require them to maintain the space.

        If not, the easiest way to resolve this is for a voluntary agreement that formalises the exclusive use and states that they accept ongoing responsibility for repairs (but not these ones)  and that they pay compensation to the rest of the building  – and I can already hear their response to this double whammy.

        In that case, you are right to look at unit entitlements.  If they are paying the same levies as similar units that don’t have car spaces, then there is an inequity that should and can be resolved by making an application to the CTTT.

        To support that application, you will need a professional survey to show that there is a significant imbalance in the Unit Entitlements (ironically, the Parkers will be paying for part of that too).

        If that failed, hmmm … the Owners Corp has a legal obligation to repapir common property and owners have a legal obligation to allow access for common property repairs and, you know what,  I can see these remedial works taking an awful long time.  What with builders being what they are … wandering off to other jobs … forgetting to bring the right equipment … jeez, it could take months to fix this and, you know what, you couldn’t let anyone near it until it was safe.  

        In fact, I’m thinking it might not be entirely safe now … I wonder how much it costs to get a big sign saying “Danger – No Parking” and a couple of metres of chain.

        But seriously, the best thing you can do is to persuade these Parkers that things are about to change, whether they like it or not, and they can work with you to do it the easy and inexpensive way, or work against you and get the same result only costing them (and you) more money.

        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.
        #17437
        Basil Oregano
        Flatchatter
        Chat-starter

          Very funny thank you sir.

          Further to both our posts, I have today acquired my own copy of the ancient Special By Law via the internet and, to me, it doesn’t look so ‘special’.

          It is two pages long but starts out : “The proprietors for the time being of each lot shall have the right to the exclusive use of that part of the common property that corresponds to the lot number as shown on… [ what amounts to a diagram ] “.

          This makes me think that, as all the units have changed hands a few times, they may not actually officially have Exclusive Use (subject to the legal kerfuffle that follows) and the whole thing needs to be looked at by a specialist Strata Lawyer at the OC’s expense, but with a view to properly assigning the car spaces while guaranteeing the current ‘Exclusive Users’ first option to have their space officially and pay more levies, pay for repairs / upkeep in the manner already mentioned; and get extra unit entitlements. What do you think please?

          #17438
          Whale
          Flatchatter

            [Basil’s post (#3) must have come in whilst I was typing this one, but nonetheless most of what I’ve said is still valid, particularly the bit about Exclusive Use By-Laws requiring the written consent of the Owners concerned before they can be rescinded or amended. Note also that one specialist Strata Law firm is a sponsor of FlatChat]

            Basil – firstly and as Jimmy advised, you need to check the Strata Plan (drawing) to ascertain whether or not those carspaces are shown thereon as Common Property, and if as I suspect they are, then for what purpose they were originally provided 40 years ago.  If they were originally visitors’ carspaces, then I’d make a few discrete and non-property specific inquiries with your local Council about whether or not visitors’ carspaces within Strata Plan’s can be permanently allocated  to resident use. There have been some discussions of this Forum to indicate that visitors’ carspaces are inviolate – once a visitors’ carspace always a visitors’ carspace, and if that’s Council’s opinion then you could use that as leverage in discussions with your Owners Corporation (O/C) about a resolution to rescind the Special By-Law as it’s in conflict with a “Superior Law” (the Local Government Act) and therefore illegal  –  just in case Council somehow finds out about it.

            Secondly and as a another approach, whilst you’ve used the generic term “Special By-Law” (i.e. one specially resolved by your Owners Corporation) you need to obtain a copy of whatever is Registered on the Strata Title, because as that Special By-Law apparently confers upon the Owners of ten (10) Lots the “exclusive use” of those outdoor carspaces, it’s actually an Exclusive Use By-Law and covered under Pt5 Div4 of the NSW Strata Schemes Management Act (the Act). That Part of the Act states that any By-Law that confers exclusive use must include a clause stipulating who is responsible for the ongoing maintenance and repair of the area, and that may well be those Owners. If your Plan’s By-Law is silent with regard to ongoing maintenance and repairs, then it may well be illegal on that ground (also), and whilst it cannot be rescinded without the written consent of those 10 Owners, your O/C could use its illegality as a very strong lever to, as Jimmy T suggested, negotiate some agreed form of a new properly worded and properly resolved Exclusive Use By-Law to in future apply, which could include the provision of ongoing monetary payments to the O/C in lieu of a possibly painful approach to the CTTT about amending the Unit Entitlements of those Lots.

            Finally, except for doing nothing whatever course of action you choose to implement will require a Special Resolution of your O/C where ≥75% of Owners in attendance personally or by proxy will have to vote in favour of whatever is proposed, so given there’s 34 Lots and 10 Owners possibly against the Motion, you and the like-minded members of your O/C will have to rely heavily upon the possible illegality of what’s now in place to swing things in favour of a change to legality and equity.

            Christmas Greetings (and good luck) to you too! 

            #17454
            Sir Humphrey
            Strataguru

              @Basil Oregano said:
              …It is two pages long but starts out : “The proprietors for the time being of each lot shall have the right to the exclusive use of that part of the common property that corresponds to the lot number as shown on… [ what amounts to a diagram ] “.

              This makes me think that, as all the units have changed hands a few times, they may not actually officially have Exclusive Use…

              I suspect there could be some confusion about the term “for the time being”. Our OC recently fixed up an ancient mess to do with ‘special privileges’ (=exclusive use) for parking spaces on the common property, redoing it properly with new legal advice. Being in the ACT we needed an unopposed resolution and (among other reasons) had problems with a few owners who did not understand this phrase (They had other problems too such as not really understanding that the parking spaces were common property and assuming the evil EC was plotting to deprive them of property rights they imagined they had). Even when we explained it with direct quotes from our lawyer putting it in plain english, they seemed to willfully not ‘get it’.

              Our parking allocations to most owners had not, it turned out, been validly assigned 30 years ago. To fix it we would have to pass an unopposed resolution (NSW requires only a special resolution). Just a few owners did not have the same use of the common property as the rest so they could reasonably object to a motion that only reinstated status quo while leaving them out. We had to come up with a plan that was the most fair and equitably possible in the circumstances. Only that could be given effect on an appeal to the ACT tribunal if a few owners objected as seemed likely and did indeed occur.

              Anyway, enough of our recent issues…

              The ‘proprietors for the time being of each lot’ means whoever owns the lot at any instant. When you own the unit you are the proprietor and the right of exclusive use belongs to you. At the instant that the lot changes hands to someone else they are the proprietor and the right belongs to them. The effect is that right runs with the lot even though it is expressed as belonging to the proprietor. So, if the exclusive use rights were validly assigned to the proprietor of a lot ‘for the time being’ they would still validly attach to the present owner of that lot. 

               

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