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The committee of management of a new mixed commercial & residential building in Victoria has disallowed the application of a protective paint on the floor of a resident’s car parking lot.
The car park is below ground level and not accessible to the public.
The re-painted surface is inside the boundary line of the resident’s car lot and the pre-existing painted car lot boundary line was not re-painted.
The reason for disallowing the floor paint was based on the OC rule: “An owner or occupier of a Lot must not in any way alter the external appearance of a Lot or any structure on a Lot including by any addition of any nature, change of colour, finish or decoration of any external wall or woodwork” (think is from the Victorian model rules).
The basement of the new building is presently all raw concrete. The off-the-shelf grey coloured paint colour the OC disallowed is the same as that normally seen applied in many public car parks.
Notwithstanding the pettiness of ruling that a resident cannot make the surface of their car lot easier to clean, by ensuring oil drips do not soak into the raw concrete floor, my question is whether the area inside the title boundary of a car park lot considered the exterior of a lot.
Thanks.
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If the floor can be seen from someone standing on the outside of the garage then that could fit within the ‘appearance of a lot’. Is your garage space self contained i.e. does it have a garage door and wall sides or is it totally open to public view?
Chai – It is immaterial whether the car space can be seen by the public. The owner’s corp is concerned about is whether anyone from the OC can see it, particularly from the common property. If there are no walls or door then anything that you paint on the floor of the car space can be seen by other owners and is therefore a change in appearance and therefore a breach of the by-law. If the car space was to be painted then it would clearly appear different from all other car spaces.
The by-law that deals with the appearance of a lot is basically to maintain the uniformity and sameness of the appearance of the lots, and that would include the car spaces. Some schemes take a strict approach and others are more lenient.
@chai said:
The committee of management of a new mixed commercial & residential building in Victoria has disallowed the application of a protective paint on the floor of a resident’s car parking lot…The reason for disallowing the floor paint was based on the OC rule: “An owner or occupier of a Lot must not in any way alter the external appearance of a Lot or any structure on a Lot including by any addition of any nature, change of colour, finish or decoration of any external wall or woodwork” (think is from the Victorian model rules)…
The committee can’t approve something that it thinks would be contrary to the rules. However, a general meeting resolution trumps the committee. It might be that the committee would agree that this protective paint would be a good idea but it believes it is acting properly by not exceeding its powers.
Regardless of the committee’s view, a general meeting could resolve that protective paint may be applied to parking spaces (perhaps specifying only certain locations or requiring a particular colour). It might be done as an amendment to the rules of the OC or it might be sufficient for the OC to resolve that a particular paint application would not contravene the rule because the protective paint would match the concrete and actually prevent more substantial alteration of appearance by oil stains that would be more difficult to remove. Such a resolution would provide guidance to the committee as to how the OC wishes the EC to interpret the OC’s rules.
@chai said:Notwithstanding the pettiness of ruling that a resident cannot make the surface of their car lot easier to clean, by ensuring oil drips do not soak into the raw concrete floor, my question is whether the area inside the title boundary of a car park lot considered the exterior of a lot.
I chair an OC in Victoria and sit on another OC’s Committee. We have even sought legal advice on this type of issue. If the Plan of Subdivision states INTERIOR FACE: ALL BOUNDARIES, then without a specific notation stating otherwise, the car park airspace inside the lot boundary is interior lot property as is any paint on the floor or walls (as per inside a lot apartment). The same applies to floors and walls of lot terraces and balconies which, although actually external to the building, are interior from a title perspective.
IMO the OC Rule on external appearance will apply if the lot parking space floor can be viewed externally from outside the lot – which seems to be the case. The Rule is not part of the Victorian Model Rules. But you’ll note it only restricts lot owners or occupiers. It doesn’t restrict the OC itself from making an alteration which would presumably be at OC expense. From a practical point of view, it’s usually easier if the OC maintains car parking floors and walls. But it can ask that owners clean up oil spills etc.
An OC Committee cannot overturn a registered OC Rule in Victoria and neither can a general meeting of the OC without a Special Resolution. Special Resolutions in Victoria can be quite hard to get especially in larger stratas: they need at least 50% of the owners to actually vote (an almost impossible task in larger stratas) and to vote for the motion with no more than 25% voting against.
You could challenge the OC Rule at VCAT. Or perhaps just use a drip tray?
chai – If this matter went to Adjudication the Adjudicator would look to see if other by-laws were in place to restrict what an owner or occupier was permitted to do to change the external appearance of a lot.
You have listed another by-law that relates to the external appearance of a lot therefore this could be construed as indicating that the uniformity of the external appearance of a lot is something that the OC has a particular interest in preserving.
The word “external” is not to be taken in isolation, instead it forms part of the phrase “external appearance of a lot”.
The OC has a duty to enforce the by-laws. If there has been a breach in a by-law then the OC can request that the owner remedy the breach.
You have three options: remedy the breach as requested by the OC; take this matter to a General Meeting and have the OC decide to allow the flooring change; or take this to VCAT.
chai said I feel that the word external to “external appearance of a Lot” has significance here. In my opinion, and without any legal experience or knowledge of any VCAT precedence, I don’t think the OC is able to demand the lot owner revert the painted interior of a lot to the original unfinished appearance.
I think I understand your dilemma: How can “external appearance” refer in fact to an “internal” area?
Under s.5.2 of Schedule 1 of the Owners Corporations Act 2006 an OC can make rules about the “external appearance of lots”. IMO VCAT has also made it clear in published cases such as Owners Corporation PS508732B v Fisher that “external appearance” means the appearance of even the internal parts of a lot from outside the lot:
Owners Corporation PS508732B v Fisher
At 20:
Further, lot owners should have the ability to control the choice of tile within the lot (subject to any rule relating to the external appearance of the lot).
If you substitute the word “tile” with “paint”, you’d have your situation.
@chai said:
A recent VCAT ruling Owners Corporation No 3 PS419703E v Bell (Owners Corporations) [2017] VCAT 494 (10 April 2017) may be read to allow the painting of the interior of a lot, especially if it is not easily visible by the public.But if the lot were easily viewed, I think VCAT would have supported the OC application:
23. I find that the silver panel on the glass wall is visible from outside the lot and is technically a breach of special rule 9(a)(2).
The OC’s poor behaviour was also taken into account (under s.167) in the ruling.
There is another recent VCAT case where this matter was considered (by the same VCAT member):
https://www.austlii.edu.au/au/cases/vic/VCAT/2017/470.html
19. In my view, the external appearance power gives the owners corporation a power to make rules with respect to the aesthetic look of the lot, including but not limited to, colour and conformity of appearance to other lots and common property. The power does not extend to what can be built, or how it must be built, but is confined to regulating the appearance of what is built or to be built.
I’d say that would apply to a common car park area.
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