use of strata property when landlord

Discussion in 'Property Management' started by CraigJ23, 2nd Nov, 2021.

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  1. CraigJ23

    CraigJ23 Well-Known Member

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    If you are the landlord of a unit in a strata complex, but you don't actually live there, can you use the facilities at the strata complex, such as the pool and gym?
     
  2. Car tart

    Car tart Well-Known Member

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    No they are exclusive to occupants of the building and their guests. Otherwise you would be double dipping by paying one levy and using it for two families.
     
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  3. Lindsay_W

    Lindsay_W Well-Known Member

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    Why not save everyone's time and call your Strata/OC?
    Picking up the phone and speaking to the right people is the quickest way to get the correct response.

    Did you not like the responses you got over on Whirlpool?
     
  4. Michael Mitchell

    Michael Mitchell Well-Known Member

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    I would say yes, unless there is a specific By Law which says you could not. I would be fascinated if one such ever did and furthermore if it was even a lawful By Law.
     
  5. thatbum

    thatbum Well-Known Member

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    I'm pretty sure the default position is that yes, you could use the common facilities in that sort of situation.

    I can't think of a good legal reason why a landlord could be stopped from doing that.
     
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  6. Scott No Mates

    Scott No Mates Well-Known Member

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    A long bow to draw however could a tenant consider it a breach of their right to quiet enjoyment or consider it to be an unauthorised inspection/inspection without notice?

    Some tenants get uppity if the LL walks/jogs/drives past on their regular route - this is more invasive.
     
    Last edited: 2nd Nov, 2021
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  7. thatbum

    thatbum Well-Known Member

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    Pretty long bow to draw in most normal scenarios. The tenants get exclusive possession of their actual unit - that doesn't change. Their access to common property isn't impeded either. And their premises isn't being really being inspected.

    The drive by thing is a bit of a different issue and more about whether the landlord is either doing something to bother the tenants, or otherwise has no legitimate reason to be driving by.

    But if say, the owner wanted to use the apartment gym without bothering the tenants, seems legitimate to me.

    No foul that I can see.
     
  8. Car tart

    Car tart Well-Known Member

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    The answer is NO. I’m a licensed strata manager and a licensed Real Estate Agent. You have signed away your rights once you lease the property. I am not guessing and putting up my guess, I am telling you the NSW legislation.
     
  9. Michael Mitchell

    Michael Mitchell Well-Known Member

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    I'm not in NSW I'm in QLD, the question from OP is not state-specific, my reply was from QLD view point, interesting topic.

    Can you please quote the legislation you refer to from NSW to prove what you say (both the strata aspect and the residential tenancy aspect), thank you.
     
  10. skater

    skater Well-Known Member

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    You are saying that it's not State specific, then saying that your reply is from a QLD stand point. You are contradicting yourself.
     
  11. Car tart

    Car tart Well-Known Member

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    Pick up your lease. It’s written there. It’s no different to buying a unit with visitors parking and parking your car there. You assign your tenants the rights of the unit and the common property. It’s in the lease, you can’t use your tenants rights.
     
  12. skater

    skater Well-Known Member

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    @Car tart has replied with the correct information, but why would you even want to, anyway? It's not often that your IP is going to make it more convenient to go there, than a proper gym, open to the public, and a public one would be better fitted out.
     
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  13. Gen-Y

    Gen-Y Well-Known Member

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    Answer is NO.
    You can't in QLD - If you have lease your property to the tenant.
    You have sign your rights to the tenant to use the strata facilities.
     
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  14. Scott No Mates

    Scott No Mates Well-Known Member

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    Then to put on my 'S... Stirrer' hat - does personal use of 'your' IP unit's facilities reduce the deductibility of your costs as it's no longer purely an investment & you're deriving a personal benefit?
     
  15. Gen-Y

    Gen-Y Well-Known Member

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    But what happen if you have a penthouse that have the city view and can watch the firework during NYE?
    That would be good to have if you are living there. :D
     
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  16. Michael Mitchell

    Michael Mitchell Well-Known Member

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    Hi Car Tart,

    Here is an RTRA Residential Tenancy Agreemeent (Form 18A) with the Standard Terms and Conditons: RTA-general-tenancy-agreement-form18a.pdf, which is cherry picked sample of most relevant parts of the Act you can find here: Residential Tenancies and Rooming Accommodation Act 2008 (legislation.qld.gov.au). Please go through and show us where it says the Lessor/Agent is prohibited from using the common property facilities of a strata-titled property.

    I have read through, the residential tenancy agreement relates to exclusive use, as does the right to quiet enjoyment. In the example mentioned above by @Scott No Mates, an example of that would be the Lessor owns multiple units in the same scheme, and happens to reside there as well, them enjoying the common property facilities, as pointed out by @thatbum is not infringing on the Tenants right to quiet enjoyment of the exclusive use property their residential tenancy relates to.

    Similarly, on the strata front, there are three definitions referenced to characterize persons on the scheme - Owners, Occupiers and Guests. If you read through many scheme By Laws, generally speaking, Owner and Occupier are used together; in a sample of around 10 sets of By Laws for various schemes of units I manage that are in, there is no reference to an Owner who is not an Occupier, being prohibited from enjoying the common property facilities. Likewise, in the BCCM Act, I cannot find any overarching obligation either. As I said, if a Body Corporate actually wanted to stop an Owner who is not an Occupier from enjoying the common property facilities it would need to be done with a By Law, and (I'm not a strata expert) but from the tiny bit I know I'm willing to bet such a By Law would not actually be lawful without a lot of legal work...

    So, I'll ask you again, can you please quote the legislation you refer to from NSW to prove what you say (both the strata aspect and the residential tenancy aspect), thank you.
     
    Last edited: 2nd Nov, 2021
  17. Michael Mitchell

    Michael Mitchell Well-Known Member

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    Yes, not state-specific, so here is my 2c from QLD, and was interested to see what other states would say regarding their states.
     
  18. Car tart

    Car tart Well-Known Member

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    It doesn’t say that blind skydivers may not use the gym. It doesn’t say that one legged policemen may not use the pool. It doesn’t say that bald seven month pregnant grandmothers may not exercise daily.

    The lease grants the tenant the use of the premises.

    It is up to you to find where you AND the tenant can co-use the pool as our leases say the tenant has use and our bylaws say the owner OR the tenant may use. Nothing gives both use.
    In the 42 years we have been prosecuting tenants and owners in these matters on behalf of Owners Corporations, the court has always ruled on these meanings. Many strata agents and Owners Committees themselves don’t know the dangers of allowing non residents to use facilities at strata complexes.

    We have had concerns with paedophiles at pools and perverts at gyms, which is why we have acted on behalf of occupants in the past. We manage well over 24,000 units, so a problem that may be rare in a block of 12 seems to occur regularly with larger organisations in Sydney.
     
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  19. datto

    datto Well-Known Member

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    I have used a complex facilities and I wasn’t an owner or even a tenant. Just found the facilities irresistible.
     
  20. thatbum

    thatbum Well-Known Member

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    If you're saying that the restriction comes from residential tenancy laws, then that is definitely incorrect.

    There's nothing in a standard residential tenancy lease or legislation that would prevent a landlord from using the common facilities if their unit was rented out.
     
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