Can non-resident owners use our pool?

MrMike wrote:

An Owner… has leased his unit and … now maintains that his ownership entitles him to use of the pool and that the by-law would be unenforceable.

I’m neither a lawyer nor an expert either, but it strikes me that this is both a legal and moral question.  That the owner is double-dipping (no pun intended) is beyond doubt.  He wants to have his cake and eat it.

Legally, his ownership of the unit probably entitles him to access common property.  But does it entitle him to use the facilities?

As we have discovered many times recently, the true power of by-laws is only established when they are tested and the way to test this is to enforce it and see what happens when you get to NCAT to have a fine imposed on the owner for ignoring a Notice To Comply.

Alternatively, if there is electronic access to the pool area, you could cancel the owner’s spare key and let him take the committee to NCAT to have it reinstated (having established an alternative  way for him to inspect common property should he need to do so).

Or is this just one arrogant, self-centred individual who might not like, for instance, seeing his name come up in the strata committee minutes every month when it is noted that he continues to ignore the by-laws despite repeated requests to cease and desist.

The question is, how much time, money and energy do you want to expend on this.  After all, it’s only one extra body in the pool.  And given the unpredictability of NCAT decisions, is it worth risking having the whole by-law, which is otherwise effective as a deterrent if nothing else,  blown out of the water to put one owner back in his box?

• This reply was modified 2 years, 8 months ago by .

Austman wrote:

That opinion is that a lot owner cannot be restricted from using common facilities, that they in fact jointly own, by an OC/BC.  And that’s regardless of whether they are an occupier or not.

I suspect that’s how a tribunal would rule.  But sometimes a strata committee can find ways of making the miscreants wish they hadn’t misbehaved.

I suppose if he continues to pay his strata fees he should be able to avail himself of the facilities ec=ven if he has vacated the building.

However if there are by-laws to allow only certain people such as owner-occupiers and immediate relatives to utilise the facilities there may be a problem.

Greetings again from Queensland.  Had a similar but different situation at our Sunshine Coast complex on the banks of the Maroochy River.  We have a large ‘common property’ boatshed on the premises, intended to securely house the 15+ kayaks belonging to owners/occupiers.  (We’d also built racks on the outside wall – under CCTV – to accommodate the kayaks brought by the holiday makers at peak times.)  None of the vessels in the boatshed were marked to identify the owners and their respective lots.  More owners bought kayaks, we ran out of ‘rack’ space in the shed, and about 4+ kayaks ended up being stored on the floor – and had to be shifted every time someone wanted to access a kayak.  When we did a stock take of who owned what, we discovered that our resident holiday-letting manager had given a number of his regulars  permission to permanently store their kayaks in the boat shed – all bubble wrapped and up on the storage racks –  between their annual holidays.   The manager has been there since 2006, has a 25-year contract which gets topped-up every year, and has developed a sense of entitlement to do what he pleases.   One of the many downsides of that QLD cancer called Long-Term Management Rights.

Ross

It would be good if spmanager could possibly provide some more details?

I can find legal opinion and even tribunal cases that go the other way.   But they are not recent.

It will would be very useful to see a recent case or at least have some further details about it.

The issue with the automatically negative approaches already given is, what are you really achieving by blocking a legal right? Trying to block legal access to property really doesn’t achieve anything and misses the benefits. It reeks a bit of American style home owner association control and compliance measures which we don’t have a basis for in Australia.

Having an owner use the common property, who is  a landlord – them accessing and using common property means they arent just an absentee landlord. They are accessing, using and valuing the property.

The reality is, there is no lawful right to restrict their access. Suggesting a committee “make their lives difficult” is even more silly and is acting in bd faith. That is the exact path to create entirely unnecessary

They are more likely to maintain their own property and be involved to some extent, valuing common property. Isn’t that what committees and owners want?

Sometimes the short sighted nature of some views such as expressed here, which certainly aren’t backed up by law bewilder and is a throwback to an older generation view of “don’t let someone get something I don’t” sort of mentality which is a race to the bottom, rather than  seeing the mutual benefit and interest in just following the laws and allowing people to do what they are allowed to.

You can attempt to block. It almost certainly isn’t legal. However why block when there is virtually no downside and the upside is that the owner is a member of the community who is more likely the positively contribute? Blocking this seems to be poor faith and creating conflict over something so petty for no good reason.

• This reply was modified 6 months ago by .

TrulEConcerned wrote:

I, like others on this website, am neither a lawyer nor expert.

You missed out the word “some” before others.  There arecontributors to this website who are both lawyers and experts.

As to your point, this case, which is about non-resident owners of car spaces, appears on a number of occasions to  refer to the OC’s acknowledgement that they can’t prevent non-resident car parking space owners from using common property facilities.   If the case in Parramatta referred to by SPManager (above) can be cited, that would clarify things a lot.

Meanwhile if parking space owners can use the pool, I guess apartment investor -owners can too.  This would be open to specific interpretation, of course.

BTW, the actual dispute was about non-resident car space owners (and renters) not being allowed to park in spaces because the DA for the building referred to parking for the “occupants” and “residents” of the block. The Tribunal felt that the intent of the DA was to get cars off the street, not to give exclusive parking rights to owners in the block.