By The Paddocks Club Team

Below are examples of two questions on the Discussion Forum on Paddocks Club. We want to show what is available to our Community Members!

Insuring Exclusive Use Area structures

Member’s Question:

An owner has the right to increase the insurance on his section if he feels that it is warranted.

Would this also apply to exclusive use area’s in the Conduct Rules, may an owner of the rights to an exclusive use area add to his contribution to the schemes insurance policy in the event that he  feels  that structures on a garden exclusive use area warrant it?

What happens if the body corporate workmen damage an exclusive use area garden  structure?

Can an owner insure privately?

Anton’s Answer:

Owners must pay an additional contribution to cover body corporate costs in respect of their exclusive use area’s. Insurance is one of the costs specified in section 37(1)(b).

The trustees must see to it that the buildings and improvements to the common property are insured to full replacement value, so the trustees must increase the insurance to cover structures added to exclusive use area’s and then recover the cost of the extra premium from the owners concerned. If they have not, the owner could always suggest to them that they do.

Member’s Response:

In the event that the body corporate appointed the workmen that damaged the exclusive use area and the body corporate insurance policy covering the structure doesn’t pay out in full, must the owner of the exclusive use area rights pick up the excess?

The full replacement value should have been in the policy but so often it isn’t.

Anton’s Answer:

If the contractor did the damage he is therefore responsible for any costs of repairs. The body corporate should get the money from the contractor.

Non-Resident Owner’s Right of Access

Member’s Question:

An owner has no right of access to a flat that he has rented to a tenant except with due notice etc.

Has such an owner also given up his right to access the common property?

For example:

Does a non-resident owner have the right to an access tag where such tags are generally only issued to residents?
Does the non-resident owner have a right to use the pool, which is common property?
Is the non-resident owner permitted to park on common property perhaps in a visitor’s bay?

Carryn’s Answer:

A non-resident owner (or his other duly appointed agent) is entitled to an access tag. You cannot deny an owner access to his or her property.

The owner is legally entitled to make use of the common property pool, but practically if every owner and tenant were entitled to use the pool in the scheme there could be an excessive burden on these facilities/amenities.

The visitor’s parking bays must be used for visitors to the scheme. If the owner is attending to a matter with his or her tenant regarding the unit then the owner can park on the visitor’s bay for a short period of time.

Member’s Response:

In terms of the Rental Housing Act:

The landlord gives the tenant the “right of occupancy” of “the dwelling” (presumably the unit i.e. the section and a share of the common property).
“A tenant has the right, during the lease period to privacy and the landlord may only exercise his or her right of inspection in a reasonable manner after reasonable notice to the tenant.”

I interpret this to mean that (unless the tenant is in breach) the landlord has given up his “right of occupancy” (which includes an access tag and the use of the pool) in favour of the tenant and is only permitted on the property as a “visitor” to the tenant.

Carryn’s Answer:

Sectional title ownership is a distinct type of ownership.  A person who purchases a unit in a sectional title scheme has ownership of his or her section; an undivided share in the common property and becomes a member of the body corporate. When an owner lets out his or her unit the owner is still a member of the body corporate; pays the levies; attends the AGM; and can exercise his or her vote for motions at the AGM.

The Rental Housing Act deals with landlords and tenants. It does not only deal with letting of units in sectional title schemes, but also to freehold property etc.

I do not think that the Rental Housing Act provisions relating to “giving up occupancy” and “only inspecting in a reasonable manner” means that you can jump to the interpretation that an owner gives up all access to their property and common property when the unit is let out.

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Article reference: Paddocks Press: Volume 9, Issue 10, Page 6.

Professor Graham Paddock, Anton Kelly and Carryn Durham are available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Paddocks Club.

This article is published under the Creative Commons Attribution license.

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