This article is about whether an OC can restrict access to common property in Victoria.
Table of Contents:
- QUESTION: Residents can only access the common property by entering lot owners’ backyards in our old subdivision. Can owners block access to the common property for privacy and security, or should they provide reasonable access?
- QUESTION: Our OC has decided that only our building manager can use our loading zone. Can the OC restrict access to common property?
Question: Residents can only access the common property by entering lot owners’ backyards in our old subdivision. Can owners block access to the common property for privacy and security, or should they provide reasonable access?
Answer: The Act has several provisions for accessing private lots.
The Owners Corporations Act 2006 has several provisions that provide for accessing private lots to undertake repairs, maintenance or other works relating to common property and shared services. These are sections 46, 47, 50 and 51.
Section 46 requires an owners corporation to repair and maintain common property. Section 47 requires an owners corporation to repair and maintain services that relate to a lot that is for the benefit of more than one lot and the common property. Services noted in these sections of the Act are defined in the Subdivision Act 1988 – 12 (2).
Access to a private lot is covered under sections 50 and 51. Provision exists where the owners corporation may authorise a person to enter a lot or building on its behalf to carry out repairs, maintenance, or other works in accordance with sections 47(1), 47(2) or 48(3) – the latter not necessarily relating to your question. A notice must be given to the occupier of a lot with the intention to enter, and at a minimum, must provide 7 days – unless agreed otherwise or in the event of an emergency. It is presumed that at this point, an agreement can be arranged to provide access at a mutual time between parties.
This is a summary of the process, which is available through the Owners Corporations Act, however, there are some other considerations required before proceeding under these sections. I recommend familiarising yourself with these sections to fully understand what must occur in order to access common property via a private lot.
If the above is unsuccessful, unfortunately, the owners corporation may then need to apply to VCAT seeking an order to provide access.
Joel Chamberlain Horizon Strata Management Group E: joel.chamberlain@horizonstrata.com.au P: 03 9687 7788
This post appears in the July 2024 edition of The VIC Strata Magazine.
Question: Our OC has decided that only our building manager can use our loading zone. Can the OC restrict access to common property?
I live in a large strata building in Victoria. We have three marked ‘loading zone’ parking areas in the garage. The owners corporation (OC) has decided that only the building manager and concierge can use these loading zones. Is the OC permitted to give away common property for the benefit of subcontractors? Does it raise questions about fringe benefits?
Answer: If there is a significant alteration to common property by re-designating the car spaces, that requires a special resolution.
There are two issues here. The first is whether there is a significant alteration to common property by re-designating the car spaces. If so, that requires a special resolution pursuant to Section 52 of the Owners Corporations Act 2006. If it is effectively a lease to a third party, then a special resolution will also be required under Section 14 of the Act.
The other matter that the owners corporation needs to consider is whether there was a planning requirement to have those loading zones and whether the conversion of those car spaces becomes a breach of the planning permit that the property has.
However, if the car spaces were never originally designated as loading zones at the time of subdivision under a planning permit or otherwise pursuant to a special resolution, then the owners corporation might be able to re-designate them if it is appropriate to do so.
In respect to the query concerning fringe benefits, we are unable to provide any comments on that aspect as it is unclear on what basis the spaces are being provided and whether any individual is obtaining a direct benefit. It seems that the spaces are being used for purposes in connection with the provision of services to the owners corporation and not for the direct benefit of an employee.
Phillip Leaman Tisher Liner FC Law E: ocenquiry@tlfc.com.au P: 03 8600 9370
This post appears in Strata News #701.
Have a question or something to add to the article? Leave a comment below.
Read Next:
- VIC: Q&A Process to change the Registered Owners Corporation Rules
- VIC: The AGM Agenda, Committee Meetings and Minutes
Visit our Maintenance and Common Property OR state-specific strata information pages.
Looking for strata information concerning your state? For state-specific strata information, take a look here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.