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Topic
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Our questions relate to a NSW strata scheme where all garages and outdoor car spaces are exclusive use and all units have a parking space.
1. Can lot owners rent their parking spaces to anyone they want? For example, rent directly to the tenant of another lot? OR is it necessary to rent to another lot owner with a clause in the agreement saying that the lessee’s tenant will use the parking space?
2. Is a Licence Agreement (rather than a Lease) sufficient regardless of whether the parking space is rented to a tenant or a lot owner?
3. Also, 2 lot owners have advised that they want to exchange parking spaces so they end up with their new parking spaces being located directly beneath their own units. We note from common property title searches that when exclusive use of parking spaces were originally granted to all lots, that this was done by passing a by-law in an EGM. We presume that we will also now need to hold an EGM with a motion to pass a Change of By-law regarding the exchange. OR has the procedure changed?
We will understand perfectly if you tell us to consult solicitors. Whatever your reply, thank you as we love the service you provide.
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In regard to 1
Owners are free to rent there parking space to anyone. However there may be a by law restricting who they can rent to.
In the case of an exclusive use by law, the by law only permits the owner the use of the car space. This is different to the case where the lot owns the car space. In an exclusive use bylaw the ownership of the car space remains with the OC and hence it controls how it is used
In regard to 3
The affected lot owners would need to have their exclusive use cancelled. The lot owners need to agree this in writing before a motion is taken. Then a new exclusive use bylaw is raised showing the swapped car spaces.
The old by-law needs to be removed and the new by-laws registered on the strata title.
I’m wondering if there needs to be a by-law amendment (although that would be the correct procedure). The OC would still have the responsibility for the physical space in terms of maintenance etc, regardless of who parked there.
I would think a jointly issued letter to the committee saying the owners had agreed to exchange the use of the parking spaces untileone or other or both decided to rescind the agreement (in writing) would formalise things.
The only potential problem I can see is if one owner or their tenant misused the parking space in some way, or the property changed hands and the new resident had to be told they were parking in the spot nearest to their unit.
Can’t see many people having an issue with that… but then, this is strata.
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.
I think it’s risky for the car park owner. We had rules around the use of car ports. During lockdowns, residents were using their car ports as venues for makeshift illegal gatherings. The rule was simple – the car port could only be used to store a motor vehicle, bicycle or the like, not be a venue for a party. The reason I bring this up is to ponder how the OC might be able to effectively police the use of a car space that is let/sublet/licensed to a third party who may not even live on premises? Would the OC need the contact details of the car park lessee? Or would the owner of the lot be responsible for how the car park space is used and for any damage caused to common property like driveway and gates etc.? What if the lessee damaged a gate mechanism that cost $1000 to repair – who would be responsible? As far as the OC is concerned, there is no lessee (unless I am missing something). Sorry if this is unhelpful.
Section 258 Tenancy notice to be given to owners corporation of leases or subleases may also apply here, although if to an owner, sub-clause 5 would probably apply.
Section 258 Tenancy notice to be given to owners corporation of leases or subleases may also apply here, although if to an owner, sub-clause 5 would probably apply.
OK, this (below) is what Sam is talking about, just in case you haven’t committed the Strata Act to memory. FYI, it might only apply to car spaces that are separate lots rather than common property car spaces subject to exclusive use provisions.
By the way, this is exactly the kind of question that Fair Trading will decline to answer definitively and NCAT will say is a Fair Trading issue.
258 Tenancy notice to be given to owners corporation of leases or subleases(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease.
Maximum penalty—5 penalty units.(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.
Maximum penalty—5 penalty units.(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment.
Maximum penalty—5 penalty units.(4) The notice must be in writing and specify—
(a) the name of the tenant and an address for service of the tenant, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
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.
Re 3) I would suggest the best solution is to propose a motion to amend the existing by-law to swap the allocation of the two parking spaces without changing any of the terms and conditions there might be attached to the use of parking spaces generally. Then register the by-law as amended. The motion could be proposed and seconded by the two unit owners that would benefit from the swap. Nobody else would have grounds to oppose.
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