Exclusive Use?

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Forums By-laws Exclusive Use?

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  • #230988
    Murphy Brown
    Member

    Is there any way that a unit holder can obtain “exclusive use” of a part of the common property, other than by way of a By Law?

    Some unit holders remember a discussion and vote (of some kind) regarding usage of a visitor car space by a unit holder, but there is nothing in the By Laws.  What little is recorded in the records does not use the term “exclusive”.  The number of visitor car spaces is minimal.  During AGMs there is not enough for investor parking to attend meetings.  Visitors and tradespeople have to park in the street with potential to cause issues with neighbours who are in standard residential houses.

    Any suggestions about how the committee should resolve the matter to get the parking back? The unit holder is the committee secretary and seems to think all the common property belongs entirely to themselves.

    Is exclusive use required to be marked on the title?

    Does exclusive use necessitate some “consideration” eg exchange of payment to be contractually binding?

    #231154
    ts1904
    Expert

    Hi Murphy Brown,

    Without a by-law, subdivision, lease or license, it’s not really possible.

    There is the possibility that your strata scheme has one of the model by-laws that grants a person the right to park on a part of the common property (such as a visitor parking space) with the approval of the owners corporation. Maybe at some point a resolution was passed to this effect.

    However:

    1. it probably is in breach of Council planning laws which prohibit residents from parking in visitor parking spaces.
    2. It doesn’t grant exclusive use – it just grants the right to park there.

    I’d suggest drawing their attention to this and if you think it’s necessary, put a motion to revoke any and all approvals that may (or may not have been) given to park on the common property, for the avoidance of any doubt.

    Then, you go down the normal path of enforcing the by-laws regarding parking on common property and use of visitor parking.

    #231208
    Murphy Brown
    Member

    Thank you.  I was of the belief that there was no exclusive use because I hadn’t seen anything on the minutes, by laws or the title during purchase.   There is definitely no lease. There is a model by-law 2 (pre 1996) re no parking on common property except with written approval and it would appear that it is, as you suggest, just a resolution granting a parking right.

    I was concerned that it if it were exclusive use then it would breach DA since I couldn’t see anything on title about exclusive use rights or a sale of common property, nor in the limited minutes available.  The local Council doesn’t hesitate to send letters threatening fines if they get a complaint, and I have known of threats of $6000 fines (per instance!) for some offences at other properties, which is well outside the strata’s capacity to pay.

    I will do as you suggest and put a motion to revoke, at the first opportunity, to the Owners Committee after the AGM, when, all going well, the office bearer won’t be in the same position to benefit themselves.

    Thank you again for taking the time to respond.

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