Failed parking ban costs owners a truckload of cash

With car parking, pets and noise continuing as the three top irritants to apartment-dwellers, it’s amazing to what lengths some people will go to try to settle disputes about parking.

Take one Sydney block which 48 years ago sold off some of their car spaces to residents of neighbouring buildings – and then decided they didn’t want to allow them into their building to use the carpark any more.

You might think it’s a bit late to change your mind, especially when one car space sold for as much as $220,000 and the Strata Committee had been happily collecting levies from the owners for all those years. And you’d be right.

The Owners Corporation of the 15-storey, 78-apartment Elizabeth Bay Gardens in the eastern suburbs lost a NSW Supreme Court case to kick out the non-resident car space-owners and have now just lost an appeal against that verdict.

SELLING

The battle has costs hundreds of thousands of dollars and, in the final irony, the Strata Committee are now thinking of raising funds by … yes, selling off a car space, although whether to a resident owner-occupier or someone nearby, we just don’t know.

The Sun Herald reported that three judges sitting in the NSW Court of Appeal have ruled that those who’d bought the spaces are perfectly entitled to use to them.

“But with this verdict, we are so relieved to see an end to this at last,” says Julian Canny, one of the 23 non-resident car space owners. “The whole thing was just extraordinary. We’ve been paying our strata levies on the car spaces for years, so how could they try to ban us now?

“And the absurd thing was, if we’d have lost the case, we would have still owned car spaces in the building, but been unable to use them. In that case, only apartment-owners would have been able to buy them – and maybe they would have offered us $10?”

Onlookers are also celebrating as they see it as a precedent set for other old apartment buildings that have sold car spaces to non-residents.

Andrew Woodhouse, president of the Potts Point and Kings Cross Heritage and Residents’ Society says, “This decision has far-reaching ramifications for all strata scheme-managed buildings in NSW. It gives non-residential occupants rights to use those car spots, especially since they’ve been paying strata levies and fees on them.

“In places like crowded Elizabeth Bay with its high-rise apartment towers all vying for a better view like fans at a footy match, this is an important point. Until recently this was a vexed question.”

DISPUTE

No one from the building’s strata committee returned approaches, but strata manager John Sarraf of Sarraf Strata said there was nothing to say about it; the court had made its decision and that was that.

“We had our AGM this week and there was no problem,” he said. “There wasn’t really any discussion of it. There’s nothing to say. The court made its decision and that’s it.”

The dispute over the car spaces at Elizabeth Bay Gardens, at 15-19 Onslow Avenue, first exploded in the 1980s when the apartment-owners back then took legal action against the non-resident car-owners to try to ban them. They lost then, but in 2014 introduced a bylaw banning them from the building, and changing security swipe cards so they couldn’t gain access.

The 23 people affected took the Owners Corporation to the NSW Supreme Court in December 2017 and won in February this year (2018), and the bylaw was declared invalid. But then the Owners Corporation appealed against the verdict – and lost again, being ordered to pay costs out of funds raised by all owners bar the car space owners.

Lawyer for the building, Adrian Mueller of JS Mueller, said the case stemmed from a letter from the City of Sydney that referred to the 1969 development consent for the building, saying that only occupants of the building should be using car spaces.

“As a result of that letter, the Strata Committee introduced a bylaw saying that the car space owners had to comply with the development consent,” he said. “They were obviously quite concerned and started the legal action in the Supreme Court against the building.

“Ultimately, I think the case is an example of what can happen when the local council issues a development consent in unclear terms.”

Local Potts Point agent, Vicki Laing of Laing Real Estate, said the dispute had been going on ever since she started in the industry. “So it’s incredible, really, that they tried all over again, even despite accepting money in the form of strata levies for the unit entitlements for those car spaces for years,” says Ms Laing.

“It’s costing them so much in legal actions, and I can’t understand why they’re doing it. I think, at base, they’re worried about the car space owners using other areas of common property, like the pool. But I think all the car space owners want is to park their cars!”

Mr Canny, in his 70s, confirms he has never used the pool since buying two spaces for him and his wife for $130,000 in 2006.

“And, ironically, if we’d have lost, while we wouldn’t have been able to use our car spaces, we’d still have access to that common property,” he says.

 

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