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As part of the dispute process, the OC Committee has now determined that a building access swipe/fob is NOT common property and that it provides a service that exclusively serves one lot owner and is therefore the responsibility of the lot own to repair or replace. Exclusive services are usually a lot responsibility in Victoria and in some other states.
So I’ve now applied to take this matter VCAT at my own expense.
I’m trying to assess the matter the way VCAT will and would appreciate any advice from others. VCAT handles matters in a rather structured way so apologies if the below is overly complex. But read some VCAT decisions and see for yourself.
Q: Is a swipe/fob common property? A: Even if a swipe/fob is not common property it’s the services that the swipe/fob provides that become important.
Q: What services does a swipe/fob provide? A: I can only think of two: security and access.
Q: Is the security service that the swipe/fob provides an exclusive service? A: I can’t see that it is. The security that any swipe/fob provides is in my view a benefit that all residents in the building enjoy.
Q: Is the access service that the swipe/fob provides an exclusive service? A: I think it could be argued that it is. The swipe/fob provides access exclusively for the swipe/fob holder. So on this I think the OC Committee has a point.
But the OC Act (VIC) s.47 specifically states that the OC itself must maintain certain services. Those services include a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act (VIC)1988. It then goes on to state that the easements or rights that may be implied under section 12(2) of the Subdivision Act 1988 are those necessary to provide (among other things) rights of way. So if lot owners have a right of way over common property to their lots, the OC must repair and maintain that right of way.
Q: Do lot owners have a right of way to their lots? A: I think this right of way is a fundamental of all strata schemes. Lot owners are known as the dominant tenements while the Owners Corporation is the servient tenement. As far as I know, rights of way can’t be charged for and can’t be blocked or restricted. If a barrier ( eg gate/door/access coded lift etc) is placed along the right of way the servient tenement has to provide the dominant tenement a key to that barrier.
So it’s my view that although owners would usually be responsible for services that exclusively serve their lot, the OC has certain statutory obligations to repair and maintain the services that it is obliged to provide under the Subdivision Act 1988. And that includes repairing and maintaining rights of way that owners have over the OC to access their lots.
A swipe/fob that provides a right of way access is therefore an OC responsibility to repair and maintain. And in Victoria an OC is not allowed to make rules/by-laws are inconsistent with the Subdivision Act 1988.
Sorry for the long post.
@Whale said:
Austman said – I’m in Victoria but it might work in NSW too. In Victoria, the committee alone can make a decision to improve/alter common property (within limits).
Just to clarify for Beth…… NO it doesn’t work that way in NSW unless the Owners Corporation (O/C) has already put a Registered Special By-Law (SBL) in place that permits specific types improvements or alterations to be made to its Common Property, where if Owners then seek a formal consent for improvements or alterations of that type, its Executive Committee can grant that on behalf of the O/C in strict accordance with the provisions of that SBL.
Perhaps if I can clarify? There was no physical alteration of, addition to or new structure erected on the common property. Just the purchase of some lockers/cages that were free-standing and placed in one area on common property – much like a pieces of furniture. Can an EC do that in NSW?
We did it in a slightly different way. I’m in Victoria but it might work in NSW too. In Victoria, the committee alone can make a decision to improve/alter common property (within limits).
We have 12 lots and an area of common property the committee thought to use for storage. Two years ago, at OC expense, the committee installed, in that common area, 12 equal sized lockers/cages. We put a number 1 to 12 on each. We told each owner they were allowed to use a locker/cage that had their lot number on it but that the area and the lockers themselves remained common property. We saw this as a fair an equal use of common property for each lot and that the OC would stay in control of it all.
So far it has worked.
@Paul2000 said:
I was wondering if this matter has been resolved but as there were no responses it is doubtful if MarianneM still monitors the site.Here is a slightly different situation. In a small block with adjoining courtyards one owner has let a tree (technically a shrub) get out of control and it is now about 4 metres tall and blocks sunlight into our courtyard. The non resident owner refuses to reply to correspondence and is totally non communicative.
Any thoughts anyone?
You might need to get some legal advice.
But in Victoria (and probably similar in other states) the Owners Corporation Act refers to the Subdivisions Act.
The Subdivisions Act gives lot owners implied easements for many services including light and ventilation.
Here is an extract from the Subdivisions Act:
“Subject to subsection (3), there are implied—
for the benefit of each lot and any common property—
all easements and rights necessary to provide—
full, free and uninterrupted access to and use of light for windows, doors or other openings;”
So if you feel you are being denied your right to light, you might have a case against the owner of the other lot.
I’d be contacting the owner (not the resident) about the situation.
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?
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.
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.
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.
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.
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.
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.
@JimmyT said:
That said, there is a clause in the Act that says OCs are allowed to created rules to manage common property and individual lots provided they don’t contravene other laws.
And that, I think is the problem. I see that VCAT throws out a lot of OC special rules because they often do contravene other laws.
Other laws do exist that allow strata owners the right to lease their lot in the same way as other freehold property owners and to have access to their lots for themselves, their tenants and visitors via common property. So I can’t see that an OC can actually prevent an owner from leasing out a car space (especially if it’s a separate lot) or prevent access to that car space for the tenant that leased it. Are there any xCAT cases that could be referenced that show otherwise?
But an OC can ban storage in private lot car spaces – that seems well proven in VCAT. Interestingly, the OC can’t touch the stored themselves.
@JimmyT said:
The owners corporation has the right to restrict who comes and goes on common property to people who are registered owners or tenants or their bona fide guests. Renting a car space to an outsider can be a serious breach of security and safety in a strata building since there is no recourse under law if that unregistered sub-tenant damages common property or behaves in breach of by-laws.In Victoria there is no automatic requirement to give an OC any tenant information. The OC need not even be informed if the property is tenanted at all. It’s never been a requirement in any of the properties I’ve owned and still isn’t in any of them today. So tenant ‘registration’ doesn’t exist in Victoria but VCAT has ruled that tenants still have to obey OC rules (by-laws).
And in my case, the car space (which was a separate lot) was separately tenanted. A lease existed for it.
The OC can handle security as it sees fit but in doing that can it stop an owner or the owner’s tenant from accessing their lot? That lot might be just a car space.
I own an apartment in the Melbourne CBD. Two lots – one being the apartment and one being the car space. For years the two lots were let out separately. But then the OC stated “only residents of the building can park in lot car spaces”. But no special rule (by-law) was passed and only model rules (by-laws) exist. The OC could code the car park swipe, I suppose, to limit who can enter.
Is it my right, as with my apartment, to let the car space to anyone I want? But as per the apartment, the tenant would have to abide by the OC rules? It would still be a car space being used as a car space – but used by a non-resident tenant.
AFAIK there were no development consents – in fact many of the apartments have no car parking space at all. The Melbourne city council will now charge a car park tax (the congestion tax) for car spaces let to non residents, but that is not the OC’s concern.
Assuming there are no safety or insurance issues, I think it would depend if the heater existed when the strata plan was first registered. If it didn’t, OC permission would have been needed before it was installed. And if OC permission was not given, the OC can have the heater removed from common property. If the current lot owner installed the heater that owner would have to pay for the removal and restore the common property, else it would be an OC expense.
Even installing an air conditioner on common property needs OC permission as this VCAT decision shows: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2013/933.html?stem=0&synonyms=0&query=conditioner%20and%20%27owners%20corporation%20list%27