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My question is in a self managed strata of three townhouses, the end of the driveway is being used by end townhouse (unit 3, secretary/treasurer), which is in my turning path making it difficult to park my car in my garage, sometimes when more than one car parks there I cannot park my car in my garage at all. Fair trading have advised that oc can grant permission for parking on common property by majority rule, simple 51 %. As unit 1 always votes with Unit 3, I am unit 2, and parking does not affect unit 1 ability to park only mine and the only people parking at end of driveway are for unit 3. Can this happen, can I be out voted, even though this affects me. The model by law says parking can be granted subject to oc approval. I thought this would have to be by a special resoltion requiring 75% ( I have 27%), not be a simple majority vote, under what section of the act would this be under.
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Fair Trading are right up to a point … but it doesn’t apply here. Perhaps you should park your car in that spot and see what happens. If they say you aren’t allowed to park there, then they are claiming exclusive use of the common property which, you are right, does require a 75 percent vote.
At the very least they are obstructing common property which no amount of cosy votes at the EC will allow them to do.
So here is my suggestion:
In the interest of future good relations with your neighbours, ask for a meeting to resolve this amicably. Let them be the first to talk about their “rights”.
If they are unreceptive, you can argue that they are claiming exclusive use (which they are not entitled to do) and that they are obstructing common property (ditto).
If the problem continues, talk to an experienced strata lawyer (like our sponsors Makinson d’Apice – or others) about sending them a letter explaining that you would prefer to settle this amicably but setting out what your options are should they fail to agree (everything from a CTTT order to the appointment of a strata manager).
After that, your lawyers will advise you on the next step. You can pursue this yourself through Fair Trading but in the interest of good relations in what is a small community, I would escalate this slowly rather than going for ‘shock and awe’ in the first instance.
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.
Hi Fiona, I would have thought that in the circumstances you outline the strata could not grant permission because of section 116 and 117 of
STRATA SCHEMES MANAGEMENT ACT 1996 (assuming you are in NSW). I am sure there would be similar provisions in other states.
S116 provides that owners, occupiers and other persons not to interfere with structure of lot or services to lot; and
s117 that: Anowner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
Please excuse the formatting but the input box for my answer is playing up.
Fiona – totally agree with Jimmy’s suggested approach, but should advise that whether or not your Owners Corporation (O/C) formally adopted the “Model By-Laws” (i.e. those in Schedule 1 to the Strata Schemes Management Act) in 2006, that Act was commenced 1996 and so those are mandatory for your Plan whether the O/C likes it or not.
Further, the verbal agreement between Units 1 & 3 is of no consequence as Sect 65(B) of the Act applies here.
Finally, I’m not suggesting a “shock and awe” approach, just providing some information to assist you in the negotiations.
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