- This topic has 9 replies, 5 voices, and was last updated 11 years, 8 months ago by .
-
Topic
-
Hi everyone, I am not sure if this has been asked and answered in previous forum topics.
I bought a flat in July, there is a driveway on the property at the side of the building, but no car spaces, there is always a car parked in the driveway belonging to a tenant in the downstairs flat. The car doesn’t block anything as the driveway doesn’t go anywhere.
On Sunday night I noticed the car wasn’t there so I parked in the driveway and went into my flat. About an hour later the tenant knocked on my door asking if I could move my car as he needed to park there. I apologised and said I thought it was common property. He said no that he paid extra rent to park in the driveway.
I didn’t think that sounded right, so I spoke to the strata manager yesterday who confirmed that the driveway is common property.
What can we do? I am wondering if we can force the landlord to pay all the extra rent they have received to the strata fund?
I feel badly for the tenant, but the landlord is in the wrong here.
Can anyone advise?
Thank you
Sassy
-
Replies
-
@sassy72 said:
Hi everyone, I am not sure if this has been asked and answered in previous forum topics.I bought a flat in July, there is a driveway on the property at the side of the building, but no car spaces, there is always a car parked in the driveway belonging to a tenant in the downstairs flat. The car doesn’t block anything as the driveway doesn’t go anywhere.
On Sunday night I noticed the car wasn’t there so I parked in the driveway and went into my flat. About an hour later the tenant knocked on my door asking if I could move my car as he needed to park there. I apologised and said I thought it was common property. He said no that he paid extra rent to park in the driveway.
I didn’t think that sounded right, so I spoke to the strata manager yesterday who confirmed that the driveway is common property.
What can we do? I am wondering if we can force the landlord to pay all the extra rent they have received to the strata fund?
I feel badly for the tenant, but the landlord is in the wrong here.
Can anyone advise?
Thank you
Sassy
In my experience, often these sort of arrangements just grow over time and become a defacto agreement. Some common property can’t be used by anyone but the occupier/owner/tenant and its use has no impact on other owners use of common property. In our complex there are a couple of units where parking directly outside the occupiers garage on common property doesn’t impact anyone else and is tolerated, however, from time to time we get objections from other occupiers who can’t park outside their garage on the basis that “if I can’t do it no one can”.
“Force the Landlord to pay all the extra rent … to the strata fund” Do you know the EC? Could they have made an ‘informal’ agreement with the owner/landlord? Is the owner/landlord on the EC?
If there isn’t an formal agreement the owner is just spinning the tenant lies (or outlining a practice that has grown up over the years) to get more rent.
In my view, of course whether or not their is an agreement the occupier/tenant/owner can’t claim this as ‘their’ spot. So you are within your rights to say ‘everyone or no one’ has a right to park there.
I know this doesn’t advance your issue but perhaps the issue has a background to it take doesn’t make the issue so clear cut.
Sassy72 –
OK, you’ve confirmed that the driveway is Common Property (which I must say sounds strange given your description of the layout), and your next task should be to ascertain if what the tenant told you is true; assuming of course that you want him to stop parking on the driveway.
If that’s the outcome that you want, then your Strata Manager should know who the tenant’s Property Manager (Rental Agent) is from the Notification received under S119 of the Strata Schemes Management Act (in NSW), so ask him/her to contact that person and find out if the driveway is included on the Lease. You should also keep your Executive Committee Secretary in the loop.
That said, whether the use of the driveway is or is not on the Lease, your Strata Manager needs to advise the Property Manager that their tenant is parking on Common Property in Breach of your Plan’s By-Law, and that if he doesn’t stop doing so the Owners Corporation will issue him with a Notice to Comply (with the By-Law).
As Cosmo said, if you don’t nip this in the bud it has the potential to become endemic, and that’s not desirable.
So far as any action against the Landlord is concerned, again, firstly find out if what the tenant said is true and maybe come back with another post at that time.
Common property is common property. If the owner of the unit is cashing in on the extra rent, that is illegal. If the owner is prepared to pay for that parcel of land, so that parking spot becomes part of the owner’s unit, then that’s fine. The owner will have to approach the committee and ask if he can pay for the land the vehicle is parked.
Otherwise, it’s common property, and the committee can inform the owner it’s illegal, or if you make an agreement, all the rent received from the tenant for that parking spot, it should be forwarded to the Strata Bank Account.
Get everything in writing as well.
I’m guessing that Cosmo must have resolved his issues in the 3 months since his post, but as a matter of clarification on GooBoy’s post, the Executive Committee (E/C) cannot itself make a decision on a Proprietor’s request to use Common Property in the manner suggested. That’s a matter for the Owners Corporation to take by Special Resolution at a General Meeting, perhaps on recommendation from the E/C.
Hi Whale, it wasn’t me that had the issue it was sassy72.
My posting was just pointing out that sometimes with issues like this there is background to the issue. Finding out the background to how the situation arose might help decide an appropriate course of action to resolve the issue. It would be interesting to see if, perhaps, there is an old ‘agreement’ that doesn’t meet the formal requirements of an OC resolution.
Of course maybe there is no background to the issue. The facts outlined by sassy72 (that parking in the spot did not block anything and sassy72 was able to park in the spot when the spot wasn’t ‘taken’) would indicate that either:
- the landlord is acting outside the law. And therefore enforcing the ‘no parking on common property’ might be the way to go;
- or perhaps the tenant is just telling porkies so again the enforcing the ‘no parking on common property’ might be the way to go.
I would be interested in finding out whether sassy72 resolved the issue and if so how.
Yeah, sorry Mate. I realised that it was sassy72′s post later on when my eyes uncrossed, but by then your response was “awaiting moderation” so I didn’t do any editing of mine.
Maybe sassy72 will read this and let us know what eventuated.
Hi Sassy72 – thanks for letting us all know the outcome; I for one often wonder what happens subsequent to answering peoples’ queries.
So I guess the landlord’s keeping that extra rent for the driveway – probably a good outcome though as I don’t know an easy way for an Owners Corporation to recoup that.
There are two “foundation” matters
1) what do the body corporate rules say,
2) does the landlord hold a lease of that part of the common property.
Often you find developers (who at the tine of development control the body corporate) enter into a lease or licence agreement with lot owners.)
When these two issues have been addressed the answer will be found
- You must be logged in to reply to this topic.