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My partner and I have been renting out a studio which needs access with a swipe key. We moved in about 10 months ago and my partners swipe key stopped working about 1 month ago. No damage to it, not broken – just stopped swiping.
After contacting the real estate and waiting over 2 weeks for a reply, I have been told that the “swipe is no longer covered under warranty and a new one will cost $220”. Which we have to pay.
Is this fair or legal or something, because when we moved in, we were told nothing about a warranty with the swipe key and seeing as it wasn’t us who broke it.
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Sounds to me like the REA is looking to increase his remuneration by a dodgy practice. You are entitled to 2 working keys to all doors giving access to your studio and this is the responsibility of the owner or his rep (REA). The only time you can be charged is if asking for an extra key or you have lost or damaged one of the keys provided.
Phone the tenancy helpline.
I can comment that it’s the same, even for owners, in a building where I own an apartment. If a building swipe card goes faulty the owner has to pay to have it replaced.
I suppose it’s the same logic as if your garage remote stopped working. It’s an equipment fault but it’s the owner’s equipment.
That seems to be their logic.
nicks1990 said
My partner and I have been renting out a studio which needs access with a swipe key. We moved in about 10 months ago and my partners swipe key stopped working about 1 month ago. No damage to it, not broken – just stopped swiping.
After contacting the real estate and waiting over 2 weeks for a reply, I have been told that the “swipe is no longer covered under warranty and a new one will cost $220”. Which we have to pay.
Is this fair or legal or something, because when we moved in, we were told nothing about a warranty with the swipe key and seeing as it wasn’t us who broke it.
Well, it depends on the terms of your by-law. But, from what I have observed, most by-laws tend to provide that swipe cards are property of the owners corporation. Hence, if you’re in NSW and the by-laws so specify, then an owners corporation would have a duty under section 62 of the Strata Schemes Management Act 1996 to replace the swipe cards if they become defective.
As for the tenancy aspect, it may be arguable that your landlord is under a duty to provide replacement swipe cards under sections 63(1) or 70(1) of the Residential Tenancies Act 2010 (NSW).
mini said
Well, it depends on the terms of your by-law. But, from what I have observed, most by-laws tend to provide that swipe cards are property of the owners corporation.
Wouldn’t it depend on who actually owns the key/remote/swipe?
I’ve been a member of six OCs/BCs across 3 states/territories and have not yet encountered a by-law or registered special rule in any of my OCs/BCs about common keys/remotes/swipes.
The OCs/BCs that I’ve been a member of have initially given out a number of common keys/devices to the owner of each lot and have then charged a fee to supplement or replace them. I suppose this means that they became the owner’s property and therefore the owner’s responsibility to replace if they went faulty?
I’ve noted that some OCs ask for a deposit for some common keys/devices. I suppose that means that the OC continues to own them and therefore would be responible to replace it if faulty.
My current OCs pass on costs to any owner requesting an extra or replacement – this might include a managing agent’s fee and a locksmith’s fee etc but they don’t make any income from request.
$220 does however seem a lot for a swipe key! The cost for my last replacements of 1 x key and 1 x swipe was totally $120.
Austman said
Wouldn’t it depend on who actually owns the key/remote/swipe?
I’ve been a member of six OCs/BCs across 3 states/territories and have not yet encountered a by-law or registered special rule in any of my OCs/BCs about common keys/remotes/swipes.
Yes, but how do you ascertain who “owns” the said item? Common law suggests that fitting and fixtures within the airspace of the lot are owned by the owner/occupier of the lot. It gets a tad tricky when access cards are concerned because they have one part on the common property and it cannot be clearly said that the card is a “fitting or fixture” of a lot as it is generally used to access the common property.
And by-laws stipulating that access cards are owned by the owners corporation are quite common in NSW in my experience.
mini said
Yes, but how do you ascertain who “owns” the said item? Common law suggests that fitting and fixtures within the airspace of the lot are owned by the owner/occupier of the lot.
I suppose if the OC gives or sells the owner a key/remote/swipe it becomes the owner’s? Isn’t that also common law?
Lot entry doors and the originally installed lock are also common property (in all my current OCs) but I’ve never had a demand from an owner for the OC to pay for extra/replacement keys to those doors.
Of course, if a by-law exists, that would be different.
I suppose if the OC gives or sells the owner a key/remote/swipe it becomes the owner’s? Isn’t that also common law?
@mini said:
I suppose if the OC gives or sells the owner a key/remote/swipe it becomes the owner’s? Isn’t that also common law?I have left this in because it is the kind of BS argument that eventually got mini banned from the Forum. Strata law is complex and far-reaching … introducing spurious arguments about common law is simply complicating already confusing issues.
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.
This issue is still on-going for me.
I have a faulty swipe key that I’ve not bothered trying to replace – until now. It’s for the common property building street entrance doors etc where I have an apartment that I rent out, so I only need it once or twice a year. The building manager had earlier informed me I’d have to pay for a new one.
I decided after reading all the advice here to approach the OC management company directly. Their response: It’s an owner responsibility and a replacement will cost $85.00.
So I’ve now pointed out that the swipe was not lost, misplaced or damaged. It just stopped working. And AFAIK there are no special rules about swipes and even if there were it could be unlikely that an OC could deny owners (a working) access across common property to get to their lots.
I’ll be interested to see what the response will now be.
Well, after I pointed out that an OC cannot exclude an owner from access to their apartments through the common property, the SM replied with: “The OC is not excluding an owner from access to their apartment through the common property; we are just highlighting that it is an owner’s responsibility to purchase any keys, swipes or remotes to facilitate this access.”
I would have thought that if an OC cannot exclude an owner from access to their apartments it can’t charge to access them either?
This is not about obtaining extra, lost, misplaced or damaged swipes where I agree the owner should pay. It’s replacing a faulty one – that was supplied by the OC.
Austman said
This is not about obtaining extra, lost, misplaced or damaged swipes where I agree the owner should pay. It’s replacing a faulty one – that was supplied by the OC.
I totally agree Austman you are entitled to 2 working keys for all your doors and it is up to the OC to provide them at no cost. If they claim that it is your fault they would have to prove you damaged the keys (otherwise what is to stop an unscrupulous SM disabling keys at random and then claiming the resident needs to purchase a new key from him).
Also the SM doesn’t make this decision it is the EC or OC that makes the call (or whatever they are called in your state).
I contacted Consumer Affairs Victoria. They think the issue should go to VCAT.
They agree with KP that it’s the Committee and not the SM that should be making the decisions on this for the OC.
CAV could not see where in the OC Act the matter was specifically covered. From my limited research it seems that VCAT has noted that it is the Subdivisions Act 1988 that guarantees an owner always has access to their lots – there is an implied right of way in section 12(2) which I see is even specifically mentioned on the strata plan. The OC Act can’t change or override the subdivisions Act.
CAV also commented that there might be registered OC Rules that specifically cover the matter. But when I last checked in 2012 there were no registered OC Rules – only the Model Rules.
CAV also noted that, under consumer law in Victoria, swipes must be “fit for purpose” – so they might be expected to last for very many years, similar to a metal key (and not just until any warranty expires). So the owner of the faulty swipe could take this matter up with the swipe manufacturer. As I did not purchase the swipe, that’s something I can’t do.
My OC has rejected the opinions here and in the press that a faulty swipe is an OC matter.
So now I have to take the matter to VCAT.
The OC has been told by its security company that fobs/swipes have a life of 3-5 years. The committee says that after that an owner needs to buy a new one (cost is ca $85.00), So an owner needs to pay the OC every 3-5 years for the privilege of being able to access their own property?
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