QLD: Q&A Renting, Selling or Reallocation – Exclusive Use of Common Property

These Q&As are about renting, selling or reallocation of car spaces, storage spaces or other common property in QLD strata buildings. Can I rent out my car parking space? Can I offer my storage space for rent to an on-site resident in my building?

Table of Contents:

• QUESTION: Our by-laws include six exclusive use by-laws, all with different maintenance responsibility clauses. What is the best way to simplify and unify these by-laws? Can this tidy-up be part of a by-law review?
• QUESTION: Our body corporate wants to wash down the basement parking area. The building manager insists every owner must give permission. Otherwise, the washdown would be an invasion of privacy and trespass. Is this correct?
• QUESTION: If the grant of exclusive use areas requires the beneficiary to maintain the exclusive use area in good condition, would this include re-painting the boundary surface?
• QUESTION: What happens if, during the transfer process, your car park is allocated to someone else?
• QUESTION: I live in a Gold Coast unit block of 4 units. Our by-laws do not mention parking. Each unit has 2 exclusive use car spaces. I only use one of my spaces. Can I rent my second space to someone not living in the building?
• QUESTION: In our development a lot intended for the caretaker included provisions to make improvements to the exclusive use area without seeking approval. However, the lot was sold to an owner. Can the provisions now be removed?
• QUESTION: Should the driveways to our garages be exclusive use areas?
• QUESTION: Our committee are under the impression our caretake has exclusive use of 2 visitor parks. I’m unable to find record of the change ever being approved. How do we rectify the situation?
• QUESTION: I wish to acquire a small portion of common property attached to my duplex to use as a fenced area for my dog. The other owners in our complex of four units have no objections. What steps do I need to take?
• QUESTION: The committee wishes to replace outdoor furniture as it is showing signs of wear and tear. Can the current furniture be sold and the proceeds from the sale deposited into our sinking fund budget?
• QUESTION: Regarding exclusive use areas, is the owner who solely benefits from the use of this area responsible for its maintenance or is that Body Corporate responsible?
• QUESTION: Can a Body Corporate rent common property storage cages to residents? What is the fairest way to do this?
• QUESTION: In a retail arcade, can an owner / tenant use the common area space immediately outside the front of their retail shop?
• QUESTION: Is reallocation of car parking spaces possible, what course of action do we need to take, what is our first step?
• QUESTION: Can a committee, on behalf of the body corporate, enter into a lease with an owner for the use of their parking space?
• QUESTION: For a lot owner to be granted approval to install a storage locker on unused common property, does the area have to be first classified as exclusive use only?
• QUESTION: The Committee has received a request for two exclusive use parking spaces to be reallocated. What is the process? Are the owners involved required to pay the costs associated with this process?
• QUESTION: The CMS for my scheme no longer shows my exclusive use car park. It did show the car park as exclusive use in the CMS when I purchased. What do I do?
• QUESTION: I have had a storage area in the basement car park for 32yrs. The Body Corporate has asked for the space to be handed back. Can I claim ‘adverse possession’?
• QUESTION: The Caretaker has a storage cage on common property, but does not have exclusive use of the area. Is this lawful?
• QUESTION: Does the Body Corporate have to provide an area of Common Property to the caretaker to store equipment and materials it uses at the Scheme
• QUESTION: A lot owner has placed semi-permanent sheds over some visitor car parks. To resolve, can the body corporate put a lease in place while still not conducting a business? Aren’t they conflicts?
• QUESTION: Can you please advise if there are strata parking allocation laws regarding how many car parks and how much guest parking is required in a block of units?
• QUESTION: Our body corporate would like to lease out around half of our visitor car park spaces. Are we able to do this and what legal hurdles do we need to overcome?
• QUESTION: Our documents indicate the purchase of our apartment included several small storage spaces. We’ve since been told some of those spaces were sold off to other lot owners. How can this happen?
• QUESTION: Are there any precedents of lot owners in Queensland purchasing exclusive use common areas?
• QUESTION: Can the Body Corporate sell exclusive use rights to storage spaces on common property in Qld.
• QUESTION: Can I rent out my car parking space? Can I offer my storage space for rent to an on-site resident? Do I need to notify the committee or seek permission?
• QUESTION: Does the Body Corporate or Manager have the right to make us park in our own car park or can we make our own arrangements to swap parking spaces?

Question: Our by-laws include six exclusive use by-laws, all with different maintenance responsibility clauses. What is the best way to simplify and unify these by-laws? Can this tidy-up be part of a by-law review?

Our scheme has 60+ lots. We still use the original by-laws from 20 years ago. These include six exclusive use by-laws, all with different clauses about who is responsible for what and at whose cost, and often expressed in very vague terms.

Significant maintenance costs involving the various exclusive use areas are emerging, e.g. repainting the whole scheme, replacing shade sails, and re-tiling exclusive use courtyards. Confusion about maintenance responsibilities is causing distress. Can these exclusive use by-laws be tidied up by engaging a solicitor to review all by-laws?

Answer: Changing exclusive use by-laws is not part of a typical review.

An amendment to exclusive use by-laws can certainly tidy the allocations up.

However, changing exclusive use by-laws is not part of a typical review as it does come with a number of other additional complications as any change will also need:

1. The affected owners’ consent; and
2. A resolution without dissent.

The alternative would be to receive some advice on the current obligations (which may not be as complicated as it seems).

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #667.

Question: Our body corporate wants to wash down the basement parking area. The building manager insists every owner must give permission. Otherwise, the washdown would be an invasion of privacy and trespass. Is this correct?

I am an owner/occupier of a lot in a complex of 52 lots. The building has a basement car parking area with numbered parking spaces allocated to owners.

Our body corporate committee has decided to wash down the parking area. Our building manager told the committee that every owner must permit the washing of their space. Otherwise, this would be an invasion of private property and trespass. Is this correct?

How do the many other accommodation buildings wash down/clean their basement parking areas, at least annually?

Answer: There is a lawful way as prescribed by the Act and Regulations. Now, what do most bodies corporate do?

Firstly, I assume the parking bays are allocated under an exclusive use by-law. I will answer this question assuming that this is the case.

The first place to look for guidance on this matter is in your registered by-laws for your body corporate. This will outline the responsibility of owners and body corporate in regard to maintaining these parking bays under the exclusive use (EU) by-law.

In the absence of any specific EU by-laws, the maintenance (which would include cleaning) of a car parking bay would be the lot owner’s responsibility. The building manager would be responsible for cleaning the common property areas of the basement parking (meaning all areas not allocated under an EU by-law). So, for example, if an owner has an oil stain in their parking bay, it would be their responsibility to clean this up.

The building manager would be engaged under a caretaking and letting agreement. The agreement would include a schedule of duties that define the responsibilities of the caretaker (the building manager) as part of the remuneration paid to them by the body corporate. Typically, this would be along the lines of:-

• Picking up litter from common property driveways and basement areas
• Clean common property driveways and basement areas
• Spot clean common property driveways and basement areas for oil spills and other
• Hose common property driveways and basement areas

These are just examples of what may be in the schedule of duties for the caretaking agreement between your body corporate and your building manager. You would need to look at your document.

So generally, the cleaning of basement areas and allocated parking bays is a shared responsibility.

It is not uncommon for a body corporate to do a “deep clean” occasionally by conducting a pressure clean of these areas.

In the strictest application of the Body Corporate and Community Management Act Section 158, the body corporate can supply a service to a lot owner.

158 Supply of services by body corporate

The body corporate for a community titles scheme may supply, or engage another person to supply, services for the benefit of owners and occupiers of lots in the way, and to the extent, authorised under the regulation module applying to the scheme.

I will assume you are registered under the Accommodation Module. Section 200 details that a body corporate can provide a service to a lot owner:

200 Supply of services by body corporate

1. The body corporate may supply, or engage another person to supply, utility services and other services for the benefit of owners and occupiers of lots, if the services consist of 1 or more of the following types of services—
   
   1. maintenance services including, for example, cleaning, repairing, painting, pest prevention or extermination and mowing;
   2. communication services including, for example, the installation and supply of telephone, intercom, computer data and television;
   3. domestic services including, for example, electricity, gas, water, garbage removal, air-conditioning and heating.

2. The body corporate may, by agreement with a person for whom services are supplied, charge for the services, including for the installation of, and the maintenance and other operating costs associated with, utility infrastructure for the services, but only to the extent necessary for reimbursing the body corporate for supplying the services.

So what does this all mean? It means that the body corporate can have an underwritten agreement with an owner who has an exclusive use parking bay, attend to the cleaning of the exclusive use parking and then on charge that cost back to them. This creates a lot of paperwork and administrative costs. However, it is the lawful way as prescribed by the Act and Regulations.

Now, what do most bodies corporate do?

Every once in a while, a body corporate may (at its cost) attend to the pressure cleaning to bring the areas up to scratch, and then the normal cleaning duties revert to the caretaker and owners. While this may not align with the strictest application of the Legislation, it is a pragmatic approach that most owners, and usually a building manager, appreciate.

Now, I am not advocating that you do not follow the BCCM Act and Regulations. I’m just saying, this is what many bodies corporate do.

Karen Thompson
Vision Strata
E: contact@visionstrata.com.au
P: 07 5630 6546

This post appears in Strata News #663.

Question: If the grant of exclusive use areas requires the beneficiary to maintain the exclusive use area in good condition, would this include re-painting the boundary surface?

The Osprey adjudication confirms the grant of exclusive use areas for the car park stopped at the surface of the boundary wall and did not intrude into the wall.

If the grant of exclusive use areas requires the beneficiary to maintain the exclusive use area in good condition, and if the walls are painted, does this responsibility include re-painting the boundary surface?

Answer: The maintenance obligations (and conditions) that attach to an exclusive use grant are not the same for each exclusive use allocation.

The maintenance obligations (and conditions) that attach to an exclusive use grant are not the same for each exclusive use allocation. There are default positions under the legislation that will apply. However, these default positions can be displaced depending on the precise wording of the by-law (and any conditions). A good analysis of this is made by Adjudicator Rosemann in Sunrise Sea Luxury Apartments [2019] QBCCMCmr 111.

Accordingly, without a detailed review of the exact wording of the by-law, it is not possible to confirm if there is an obligation to paint a wall adjoining the exclusive use allocation.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the August 2023 edition of The QLD Strata Magazine.

Question: What happens if, during the transfer process, your car park is allocated to someone else?

Answer: Committees should immediately register any valid reallocation in a CMS.

An increasingly common practice in bodies corporate is the transfer of car parks between owners. The committee must quickly record that reallocation in a new Community Management Statement (‘CMS’), which should be a simple and relatively cheap process.

Unfortunately for some owners, the new CMS has failed to record the reallocation, and instead, a car park is wrongly allocated to someone else. This is very bad news for a vendor who thinks they have a car park to sell but then finds out that the valuable car space is owned by someone else.

The situation becomes a legal minefield when there are numerous reallocations over many years based on an initially incorrect allocation. One of our matters involved an exclusive use area allocated to two different lots and incorrectly recorded for about 20 years when the error was discovered. The implications are that two lots thought they both had the exclusive use of that area, which had a knock on effect when the lots were sold over the years. In addition, this scheme had 3 other incorrect recordings of exclusive use areas.

We recommend that:

1. Committees immediately seek to register any valid reallocation in a CMS. Do not wait until the next CMS is due to be lodged, as it may never happen, and then the body corporate will likely be in breach of the legislation, which requires the new CMS to be registered within three months of the notification (unless an Adjudicator’s Order is obtained);
2. All owners check their CMS to make sure that they are occupying the car park noted in the CMS – it is better to find a problem now rather than when a sale is pending; and
3. Any owner involved in a reallocation should check that the new CMS correctly recorded the reallocation.

Peter Hunt
Mathews Hunt Legal
E: peter.hunt@mathewshuntlegal.com.au

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: I live in a Gold Coast unit block of 4 units. Our by-laws do not mention parking. Each unit has 2 exclusive use car spaces. I only use one of my spaces. Can I rent my second space to someone not living in the building?

Answer: If you have allocated spaces, it may be possible to rent it to a third party but I would run this past the other members to see if there are any objections or issues.

Any allocation of parking spaces should be included in the CMS for your scheme. You should be able to access this via the body corporate records. If you don’t have any allocated spaces then, by extension, all spaces must belong to the body corporate so they wouldn’t be yours to rent out. If you do have an allocated space it may be possible to rent it to a third party but I would run this past the other members to see if there are any objections or issues.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #638.

Question: In our development a lot intended for the caretaker included provisions to make improvements to the exclusive use area without seeking approval. However, the lot was sold to an owner. Can the provisions now be removed?

We are a complex of 140 units/villas under the accommodation module and building format plan.

The original developer’s DA included a provision for one of the Lots to make improvements to the exclusive use area without seeking the approval of the BC. Too many to mention here but for example: Install a swimming pool, install a spa, install children’s play equipment.

The original intention was that the Lot would be allocated to the caretaker manager and the conditions were included in the CMS By-laws. The Lot was not allocated to the caretaker manager, but the By-law remains in place which means the owner can carry out the improvements without prior approval.

One Lot owner has an exclusive right not afforded to the other 139 owners.

The opinion is that the By-Law can’t be revoked because the owner can claim the decision to purchase the Lot was based on the conditions in the By-Law. Is this opinion correct?

Answer: An exclusive use by-law can only be revoked by a resolution without dissent and the benefitting lot owner’s consent.

An exclusive use by-law can only be revoked by a resolution without dissent and the benefitting lot owner’s consent. There is no ability to revoke the allocation on the basis that it is considered unfair to other owners. The benefitting lot owner may have relied on the rights granted in the CMS (as they are entitled to do) and purchased the lot on the basis that those rights would exist – so on one hand it would be unfair if this could be taken away. There would seemingly need to be some form of technical validity issue with the original grant for it to be challenged.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #617.

Question: Should the driveways to our garages be exclusive use areas?

The driveways to garages in our 20+ year-old complex are common property and have not been allocated as exclusive use areas. Do we need to grant the driveways as exclusive use areas?

Also, can an exclusive use area be converted into something else, for example, a garden bed into a car space?

Answer: There is no requirement to make driveways exclusive use areas but it may be a good idea.

There is no requirement to make driveways exclusive use areas but if you thought it was beneficial, there is no reason not to explore the idea either.

What would be the benefits? Mostly you would be looking at transferring maintenance costs from the body corporate to the lot owners. Perhaps it would make it easier for owners to park in these spaces without breaching a by-law. Or, as indicated in the second part of the question, because it would allow the owners to use the area for alternative uses.

In terms of whether an owner can make changes to an exclusive use area, the answer is yes. Generally this has to be done with reference to the by-laws or, if there is no by-law, with the note that any improvements have to be approved either by the Committee or at a general meeting if the cost is over $3000.

For a situation like this, I think the Committee would be best reviewing with a strata specialist solicitor over what your rights are and how best to make a change. They may well recommend a new by-law to help cover the change. You should also be conscious of the numbers of people needed to approve these changes. Depending on what you are looking to do, you might need a resolution without dissent which requires all people who vote to agree on any proposal. If that’s the case, you might want to do some canvassing of owners in advance to check the levels of agreement.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #610.

Question: Our committee are under the impression our caretake has exclusive use of 2 visitor parks. I’m unable to find record of the change ever being approved. How do we rectify the situation?

The committee in our accommodation module scheme are under the impression that our caretaker has the exclusive right to two of our approximately 25 visitor car parks.

Checking with Queensland Titles, I can find no record of the change ever being approved.

I did find a mention in the committee meeting minutes from 2006 where the committee were advised by BCCM this change was not possible. I expect the matter was then dropped.

What action can lot owners take to rectify the situation?

Answer: Lot owners should ask the committee or caretaker where the manager’s right to park vehicles exists.

Not all car parking rights need to be registered with the titles office. For example, the caretaker may have been granted an occupation authority to park on the common property. Such a right only needs approval by ordinary resolution and is tied to the term of the caretaking agreement. However, any such right:

1. Must not contravene the development approval conditions applicable to the scheme; and
   

2. Can only be used for the purposes related to performing the caretaking duties.

Lot owners should ask the committee or caretaker where the manager’s right to park vehicles exists. If no right can be produced then owners will be in a better position to understand their rights.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the July 2022 edition of The QLD Strata Magazine.

Question: I wish to acquire a small portion of common property attached to my duplex to use as a fenced area for my dog. The other owners in our complex of four units have no objections. What steps do I need to take?

Answer: Obtain an exclusive use allocation over the common property that attaches to the lot.

The best way of obtaining these rights is by obtaining an exclusive use allocation over the common property that attaches to the lot.

Firstly, a motion needs to be prepared and considered at the general meeting. This motion must be a resolution without dissent meaning no one can vote against it. The motion must be clear as to the area being sought, the terms of the by-law and authorise a new CMS being prepared to record the exclusive use grant.

Secondly, if the motion passes, an exclusive use plan prepared by a cadastral surveyor needs to be prepared.

Thirdly, a new CMS needs to be prepared which incorporates the new by-law, amendments to the CMS and the exclusive use plan.

Finally, the CMS and exclusive use plan is lodged with the Titles Office for registration.

If a resolution without dissent cannot be obtained, the options are to:

1. challenge this in the Commissioner’s Office; or
2. look for a right lesser than exclusive use (like a temporary licence which would only need a special resolution).

I have assisted in preparing countless of these motions and new CMSs. If you would like any help in putting this together and submitting the motion to the body corporate, please let me know.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the March 2022 edition of The QLD Strata Magazine.

Question: The committee wishes to replace outdoor furniture as it is showing signs of wear and tear. Can the current furniture be sold and the proceeds from the sale deposited into our sinking fund budget?

Answer: Yes, the body corporate can sell the furniture.

Yes, the body corporate can sell the furniture.

How you approach that will depend on the anticipated value of the sale.

Both the standard and accommodation modules state that if selling an asset for more than $1000, a special resolution at a general meeting is required to approve the action.

Otherwise, at a lower cost, the approval requirement isn’t specified, but presumably, the committee could agree to the sale at a Committee meeting or via a VOC.

It’s important to be transparent and give owners a say, but that seems like a very high standard for the sale of some old furniture. Most general meetings will cost a few hundred at minimum to set up and run so if that is the only or main item you have to consider then it looks like an expensive way to do it. Some revision of these conditions may be required in the future. Still, depending on the cost of the new furniture you are planning to buy a general meeting may be required to approve this and that could be the opportunity to cover both items at the same time.

For reference the relevant section in the modules states:

Standard module, s190, Accommodation modue s180, Act, s157:

Other dealings with, and disposal of, body corporate assets

1. The body corporate may do any of the following—
   
   1. sell or otherwise dispose of a body corporate asset that is freehold land, or a leasehold interest in freehold land, only if authorised by resolution without dissent;
   2. grant or amend a lease over a body corporate asset that is freehold land, or another body corporate asset capable of being leased, only if authorised by— (i) if the term of the lease, as granted or as amended, is more than 10 years—resolution without dissent; or (ii) if subparagraph (i) does not apply—special resolution;
   3. sell or otherwise dispose of a body corporate asset that is personal property, not including personal property mentioned in paragraph (a) or (b), but including a licence or concession related to freehold land, only if authorised by special resolution, if the market value of the asset is more than the greater of the following amounts— (i) $1,000; (ii) the asset dealing limit.

2. In this section— asset dealing limit means the amount worked out by multiplying the number of lots included in the community titles scheme by— (a) if paragraph (b) does not apply—$200; or (b) if the body corporate has by special resolution decided an amount greater than $200—the amount decided.

Check the limits for making improvements here: Improving common property and lots

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the February 2022 edition of The QLD Strata Magazine.

Question: Regarding exclusive use areas, is the owner who solely benefits from the use of this area responsible for its maintenance or is that Body Corporate responsible?

Regarding exclusive use areas like a rooftop pool/spa area, is the owner who solely benefits from the use of this area (and no one else has any access to the area), responsible for maintenance and repairs to this area, OR is it Body Corporate responsibility?

Answer: The responsibility to maintain that part of the common property is transferred to the lot owner who has the benefit of the exclusive use area.

When an exclusive use by-law is in place, the responsibility to maintain that part of the common property is transferred to the lot owner who has the benefit of the exclusive use area.

The lot owner is also responsible for the general maintenance of the exterior walls and windows that lead onto the exclusive use area.

However, the body corporate remains responsible for any parts of the common property which are not directly related to the right of exclusive use. For example, utility infrastructure that runs through an area of exclusive use area.

And, unless the by-law states otherwise, the body corporate remains responsible for all structural maintenance.

The by-law may also contain reference to improvements to exclusive use areas. If these clauses are absent then the lot owner can seek body corporate approval if they want to make an improvement.

In the case of this question, the likelihood is that the lot owner with a pool/spa area would be responsible for the maintenance of the maintenance and repairs of this area. Still, you always need to check carefully. Read the by-law and examine the clauses. If you are unsure or there is a dispute it may be necessary to engage a body corporate lawyer to provide an interpretation for you.

For more on this topic see the BCCM website: QLD Government: Exclusive use by-law

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #523.

Question: Can a Body Corporate rent common property storage cages to residents? What is the fairest way to do this?

Can a Body Corporate charge an owner or rent to use all or part of a Body Corporate common property storage cage?

We have about 10 cages available and 78 units. If 3 owners shared a cage, the maximum number of units that would have the benefit of the BC common property storage cages is 30 units and 48 units would miss out.

Is it fairer for the Body Corporate to rent out the space?

Answer: Ask the question ‘Does anyone want to rent this space?’.

This sounds like a great idea. I don’t know if the body corporate can make any use of this common property for its own storage purposes? if not, it’s just sitting there doing nothing much. Why not rent it out to owners? It makes perfect sense.

You might need to develop a system. How can you do it? You can have an auction perhaps or I’ve worked with some buildings who have just put up signs saying, ‘Does anyone want to rent this space?’. Some residents said yes.

This provides a small income for the body corporate, which is valuable for all owners, and the owner who rents the space gets that extra utility from that. Very good idea. I would encourage all sites to do this if possible.

It’s an interesting question that’s in comparison to what we were discussing when we were looking at the visitors parking spaces. I suppose some people could say, ‘Well, could you rent out visitor’s parking spaces?.’ I think that would be more difficult because visitor’s parking space becomes part of the council requirements in the building. It would depend on the building. You might get some issues there but perhaps some buildings with excess parking spots could look at renting them or leasing them as well on a fair basis such as a blind auction or something like that.

Getting back to storage cages, there’s less competition for storage than for parking spaces. Parking spaces can be sold at quite high value these days. It might depend on the building, but there’s probably less competition amongst a number of people who want storage. If there is competition, then great, you can just put the rents up.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the October 2021 edition of The QLD Strata Magazine.

Question: In a retail arcade, can an owner / tenant use the common area space immediately outside the front of their retail shop?

In a retail arcade, can an owner / tenant use the common area space immediately outside the front of their retail shop as long as they do not hinder access and have permission from the Committee?

Can the owner / tenant pass this permission onto another shop resident in the same building.

Answer: Most likely you would need to pass an exclusive use by-law to have the right to use the space.

Most likely you would need to pass an exclusive use by-law to have the right to use the space. Responsibility for the space would then be transferred to the lot owner and passed on to the next owner if the lot was sold. Any informal arrangements could pose a liability issue for the body corporate or lead to disputes over time as to what was and wasn’t agreed.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #511.

Question: Is reallocation of car parking spaces possible, what course of action do we need to take, what is our first step?

Built on the Gold Coast, QLD in 1994, the car spaces in our lockup basement garage were selected by purchasers as each unit was sold. Our basement is all common property and our car parking space is not on our individual title. There are 8 units in our building and the garage parking is very unevenly divided. Not all units are the same size and this is not reflected in the size of the parking space allocated. Some units have double length parking bays with storage and others have small single garages.

Four units would like a reallocation of car parking spaces and want the parking spaces included on our titles (thus square meterage reflected in our body corporate contribution shares). The 2 unit owners occupy the largest car parking spaces have shut this idea down very quickly. We would like a fairer system.

Is reallocation of car parking spaces possible, what course of action do we need to take, what is our first step?

Answer: You would need all affected lot owners to agree to the change and pass a resolution without dissent at general meeting.

It would seem that if the car park is all common property and not attached to individual titles that the car parks are granted as exclusive use allocations.

If this was the case, and you wanted to change the current arrangements, you would need all affected lot owners to agree to the change and pass a resolution without dissent at general meeting.

The first step would be to carry out searches at the titles office to determine whether the car parks are allocated on this exclusive use basis (and if not, how they are allocated).

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #495.

Question: Can a committee, on behalf of the body corporate, enter into a lease with an owner for the use of their parking space?

Given an oversight at the time of the registration of our standard module Strata Plan some 30 years ago, one of the 2 exclusive use car spaces allotted to the lot for building managers is required for storing large recycle and garbage bins and access to the rubbish chute. To rectify this, there is a proposal that the “garbage” space be transferred to the body corporate to become common property, in return for changes to the management agreement.

The transfer is subject to a motion without dissent and the changes, including an extension to the management agreement, subject to an ordinary resolution. The latter is more likely to pass than the motion without dissent.

Leaving aside attempting to overturn a possibly failed motion without dissent, can a committee on behalf of the body corporate enter into a lease with the owner for the “garbage” space, either in perpetuity or if not, a defined term with multiple renewal options, all at a nominal rent? If the lease needs to be approved at a general meeting, what type of resolution is required?

The intended lease would be granted by the owner of the lot (the building managers) with an exclusive use car space to the body corporate at a nominal rent.

Answer: This lease cannot be entered into by the Committee.

The Body Corporate can enter into a lease over the area of common property allocated as exclusive use with the owner/s of the lot that has been allocated exclusive use. However, this lease cannot be entered into by the Committee.

Pursuant to s.189 of the Standard Module, the Body Corporate can only do so:

1. by a special resolution if the lease is for 3 years or less; or
2. by a resolution without dissent if the lease is for more than 3 years.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in the June 2021 edition of The QLD Strata Magazine.

Question: For a lot owner to be granted approval to install a storage locker on unused common property, does the area have to be first classified as exclusive use only?

A lot-owner would like to erect a storage locker (with a value less than $3000) on unused common property. Before approval for the improvement can be given by the Body Corporate Committee, does the area have to be first classified as exclusive use only?

Answer: A storage locker would need an exclusive use (or other) right.

In The Lookout [2000] QBCCMCmr 653 and Fountain View [2004] QBCCMCmr 543 the adjudicators found that if the improvement is on common property, a use right (such as exclusive use) is also required if the improvement is substantial, permanent or could interfere with another person’s use of the common property.

A storage locker would seemingly meet this test so would also need an exclusive use (or other) right.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the May 2021 edition of The QLD Strata Magazine.

Question: The Committee has received a request for two exclusive use parking spaces to be reallocated. What is the process? Are the owners involved required to pay the costs associated with this process?

Answer: Exclusive use parking spaces (and any storage cages) can be reallocated between lot owners by way of a reallocation agreement.

With car parks or storage cages potentially worth over $30,000, there is an increasing number of owners seeking to sell their unwanted exclusive use car space and/or storage cage. Additionally, there are also an increasing number of owners seeking to swap car spaces for a payment so that one owner obtains a car park more suitable for their needs, which often means closer to a lift and/or their other car space/s.

Exclusive use parking spaces (and any storage cages) can be reallocated between lot owners by way of a reallocation agreement.

Process

Within 3 months of being notified of a reallocation agreement, the Body Corporate must consent to, prepare and register a new community management statement (‘CMS’) to give effect to the reallocation. This consent can be granted by the Committee.

If a new CMS has not been registered within 3 months of notification, the reallocation will cease to have an effect. The Body Corporate and/or the relevant lot owners may apply to the Commissioner’s Office for an extension of time to register the CMS or have the agreement signed again.

Upon registration of the CMS, the reallocation is finalised and enforceable.

Costs

The relevant lot owners will be responsible for the costs of preparing the reallocation agreement.

The Body Corporate will be responsible for the costs of preparing and registering the new CMS, and the relevant motion, unless the relevant lot owners agree to reimburse the Body Corporate.

Alanna Hill
Mathews Hunt Legal
E: alanna.hill@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in Strata News #471.

Question: The CMS for my scheme no longer shows my exclusive use car park. It did show the car park as exclusive use in the CMS when I purchased. What do I do?

Answer: A disappearing exclusive use allocation can result from a simple error when a new CMS is prepared.

Issues with exclusive use allocations are becoming frequently more common. You should take the following steps:

1. ask the body corporate manager for a copy of all CMSs registered since you purchased;
2. determine when the exclusive use was removed from your lot (i.e. between which two CMSs); and
3. bring the issue to the attention of the committee and ask for them to investigate how it occurred.

If the committee does not take steps to address the issue, then you should obtain legal advice. A disappearing exclusive use allocation can result from a simple error when a new CMS is prepared, however sometimes the error could have been the exclusive use being allocated to your lot in the first place!

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: I have had a storage area in the basement car park for 32yrs. The Body Corporate has asked for the space to be handed back. Can I claim ‘adverse possession’?

I live in a 3 story walk-up of 9 units. I have had a storage area under the stairs in the basement car park for 32yrs.

Only myself and one other lot have a storage area in the garage.

It is an open underground secure car park for 9 cars and 2 visitor parks.

We have no title plans for this area, some have tandem parks, others have double.

The Body Corporate has asked me to unlock my storage room and take my items out as they want to use it for storage of cleaning items.

We had conciliation regarding this and the conciliatory said it is Common Property.

Do I have to hand it over or can I claim ‘adverse possession’?

Answer: the body corporate could reasonably look to remove or dispose of your goods under the relevant legislation.

Common property is defined by the legislation, strata plan and the by-laws.

While there may have been an informal agreement to use the storage space it doesn’t appear that this has been formalised in any way leading to the conclusion that the space was and is common property.

On that basis, the body corporate could reasonably look to remove or dispose of your goods under the relevant legislation.

Can you claim title of the land via the laws on adverse possession? In Queensland that broadly means open possession of an area for a 12-year period but you’d need to review this with a specialist lawyer to understand if you had any legal footing. It would make for an interesting case….

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #436.

Question: The Caretaker has a storage cage on common property, but does not have exclusive use of the area. Is this lawful?

Answer: A caretaker can only occupy common property with an occupation authority.

We often hear that a caretaker is occupying common property unlawfully.

A caretaker can only occupy common property with an occupation authority.

The occupation authority is not contained in the community management statement. The first place to start looking for the occupation authority is within the caretaking and letting agreement/s, or any variation to these documents. The second place would be to check general meeting minutes, in case the occupation authority was approved by the owners but was never incorporated into a deed. Finally, the occupation authority should be recorded in the Body Corporate register of authorisations affecting common property.

If the searches reveal no occupation authority, why not ask the caretaker to provide evidence of its entitlement to occupy that specific area of common property.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: Does the Body Corporate have to provide an area of Common Property to the caretaker to store equipment and materials it uses at the Scheme?

Answer: The Body Corporate may grant the occupation authority in return for a fee

No. However, it may be unreasonable for the Body Corporate to vote against a motion granting a caretaker an occupation authority if:

• there is an area of common property that could reasonably be used to store the equipment used at the Scheme;
• this area is not being utilised by anyone else; and/or
• something in return is offered.

The Body Corporate may grant the occupation authority in return for a fee and/or attaching other conditions such as regarding maintenance of the area and allowing access for specified reasons.

An occupation authority ceases immediately a caretaking or letting agreement ends so that owners are not deprived of their common property when the need for the occupation authority has ended.

A caretaker is prohibited from having a lease or licence or exclusive use over common property, as those rights are not tied to the ongoing caretaking or letting agreement.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: A lot owner has placed semi-permanent sheds over some visitor car parks. To resolve, can the body corporate put a lease in place while still not conducting a business? Aren’t they conflicts?

Answer: The first issue when visitor parks are involved is whether a different use is going to contravene the council’s development approval requirements.

The first issue when visitor parks are involved is whether a different use is going to contravene the council’s development approval requirements. Most of the time this will be the threshold problem.

Putting that threshold problem to the side for a moment, leasing common property does not always amount to carrying on a business. The body corporate is permitted to carry on business-like activities in discharging its duties and functions. Leases normally fall within that category.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #448.

Question: Can you please advise if there are strata parking allocation laws regarding how many car parks and how much guest parking is required in a block of units?

Answer: I believe it is the local Council that sets the strata parking allocation. They are responsible for requirements relating to the number of visitor parks a complex has, and this would be done when the development approvals were being processed.

Tower Body Corporate
E: kelly.borell@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #102.

Question: Our body corporate would like to lease out around half of our visitor car park spaces. Are we able to do this and what legal hurdles do we need to overcome?

We have approximately 100 units in a 5 year old building in Brisbane. Our visitor car park spaces are being used by just about anybody in the area for free parking!

We have 23 visitor car park spaces and are wondering if we can rent or lease 10 of them out to neighbouring businesses.

This would give us an extra $26,000 a year which we could use to benefit our building and our unit holders.

Are we able to do this and what legal hurdles do we need to overcome?

Answer: The Body Corporate will first need to contact its local council.

The Body Corporate will first need to contact its local council to obtain details of the required number of visitor car parks for the scheme, which usually forms part of the scheme’s planning/development approval. It will be important that the scheme retains a sufficient number of visitor car parks as per the council’s requirements for use by visitors to the scheme.

The Body Corporate would then need to enter into leases with the relevant businesses. This would require a special resolution for a term of 3 years or less for Standard Module and 10 years or less for Accommodation Module, or alternatively a resolution without dissent.

Additionally, the Body Corporate should update its by-laws (special resolution) as regards the use of the visitor parking and ensure that only the lease holder (and those it authorises) obtains access to the car park.

A Body Corporate must not carry on a business (s.96 of the Act). However, there are cases in which adjudicators have determined that the Body Corporate is able to require a fee or rent be paid in consideration for a leased area of common property.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000

This post appears in Strata News #290.

Question: Our documents indicate the purchase of our apartment included several small storage spaces. We’ve since been told some of those spaces were sold off to other lot owners. How can this happen?

We purchased our unit 3 years ago and according to the documents, we were also purchasing several small bits of storage space. When we inquired further, we were told by the agent that some of that storage space had been sold off to other owners.

We don’t need the space but what happens if we want to sell and don’t have any evidence that this space has been sold?

Answer: Obtain a copy of the current community management statement for your scheme to determine whether these areas are allocated as exclusive use to yourself, another lot or no one.

Exclusive use rights to storage space on common property are contained in the community management statement.

I recommend that you obtain a copy of the current community management statement for your scheme to determine whether these areas are allocated as exclusive use to yourself, another lot or no one.

If you are allocated exclusive use of the areas in question, then there is no issue as you control the area.

If there is no exclusive use allocated in respect of these areas, you can propose a motion for inclusion on the next general meeting agenda proposing that you are granted exclusive use and use the explanatory note to outline the evidence that you have that you purchased with the understanding that you had rights to these areas. The motion will require a resolution without dissent, which means that there cannot be any ‘no’ votes. If the motion is not approved, then you can challenge the reasonableness of the decision in the Commissioner’s Office. For example, have a read of the case Harmony Broadwater [2014] QBCCMCmr 313 (29 August 2014).

If the exclusive use of these areas has been granted to other owners, the situation is more complex and legal advice should be obtained.

Hayley Gath
E: hayley.gath@mathewshuntlegal.com.au

Strata News #364.

Question: Are there any precedents of lot owners in Queensland purchasing exclusive use common areas?

Answer: Previous decisions can provide some guidance as to factors that adjudicators deem relevant when considering whether the refusal was reasonable.

An owner can propose compensation in exchange for exclusive use of an area.

In circumstances where the proposal is refused, an owner may challenge the decision in the Commissioner’s Office. Previous decisions of the Commissioner’s Office can be located here. These decisions can provide some guidance as to factors that adjudicators deem relevant when considering whether the refusal was reasonable.

Some decisions that comment on compensation/consideration for a grant of exclusive use over an area of common property are as follows:

1. Crossview Homestead 2 [2018] QBCCMCmr 588 (26 November 2018)
2. Skyline Apartments [2019] QBCCMCmr 214 (18 April 2019); and
3. 211 Ron Penhaligon Way Offices [2019] QBCCMCmr 166 (1 April 2019).

Hayley Gath
W: Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au

This post appears in Strata News #351.

Question: Can the Body Corporate sell exclusive use rights to storage spaces on common property in Qld.

Answer: The body corporate can receive payment from a lot owner in exchange for granting that owner exclusive use over an area of common property.

The body corporate can receive payment from a lot owner in exchange for granting that owner exclusive use over an area of common property.

This is the case regardless of whether the common property area being allocated was accessible or capable of being used by all occupiers prior to the exclusive use allocation.

In order for the body corporate to grant exclusive use of an area of common property (such as a storage space) to a lot owner:

1. the body corporate must pass a resolution without dissent at a general meeting approving the proposed exclusive use grant and exclusive use by-law; and
2. the owner of the lot being granted exclusive use must agree to the grant of exclusive use (either by agreeing in writing prior to the relevant general meeting or by personally voting in favour of the relevant motion at the general meeting).

The body corporate cannot grant exclusive use to a person or entity that is not an owner in the scheme.

A grant of exclusive use needs to be promptly recorded in a new Community Management Statement.

Hayley Gath
W: Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au

This post appears in Strata News #348.

Question: Can I rent out my car parking space? Can I offer my storage space for rent to an on-site resident? Do I need to notify the committee or seek permission?

Can I rent out my car parking space? There is a real shortage of car parking spaces in the building and area generally.

I have been told that the Brisbane City Council says this is illegal to rent out my car space for insurance reasons but cannot find information referring to this.

Also, can I offer my storage space for rent or do I need to notify the committee or seek permission to rent out my car parking space or storage space?

Answer: As long as it is to another resident in the building then it is usually not a breach of the town plan.

It will depend on the town plan, but my understanding has been that as long as it is to another resident in the building then it is usually not a breach of the town plan.

After that, it is not normally within the scope of the committee to address what an owner does with their private car space, provided that it is within the confines of the by-law granting that right. So, for example, if the by-law says it can be used for parking only, then it can’t be used for storage.

Frank Higginson
E: frank.higginson@hyneslegal.com.au

Question: Does the Body Corporate or Manager have the right to make us park in our own car park or can we make our own arrangements to swap parking spaces?

I am an Owner Occupier in a Queensland strata building. I have one car park and a neighbouring lot owner in the same Building has two car parks. His unit is in the Holiday Pool.

As we have two cars, we have a private arrangement where I park in his car park spaces and my car park is available for his Holidaying residents.

Does the Body Corporate or Manager have the right to make us park in our own car park?

Answer: If they are your car parks and you want to share them around the building that is completely up to you!

This post appears in Strata News #316.

Frank Higginson
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
W: Hynes Legal

Do you have a question about renting out your car park space / storage space or something to add to the article? Please leave a comment below.

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