Apartment living’s still a new concept for many Australians, so we often come unstuck on our rights and obligations as owners and residents. The law’s still evolving (Queensland’s Body Corporate and Community Management Act is undergoing yet another review, the hot topic of lot entitlements still bouncing around with the politicians). And in Brisbane’s inner-city we’d argue apartment buyers get very little useful info. Their lawyers are doing the Conveyancing for a skinny margin and don’t spent the time with them. And most real estate agents are generally untrained on body corp law and practice.
So no-one should be embarrassed asking this question about the right to rent a spare carpark. Let’s get the basics right – there’s 2 types of apartment carpark allocations. One is “on title”, drawn on the building plan that’s lodged with the titles office and as much as a part of your lot as the apartment itself. You have the right to use that space as you like (keep in mind by-laws can impose conditions on external appearance of a lot for example).
The second is an “exclusive use area”, a right to use part of common property that’s contained in the bylaws of a building’s Community Management Statement. The CMS is also lodged with the titles office, something most buyers aren’t aware of, and you or your real estate agent can get a copy from the managers for minimal fee.
How you use your carpark is then governed by those by-laws and unless they say you can’t rent it independently of your apartment, it’s likely you can. There’s a good article written in 2013 by our state’s Body Corp Commissioner, Robert Walker, spelling out the history of tribunal hearings on the issue, and particularly North Point body corp’s failed 2012 attempt to stop an owner renting their carparks.
An earlier Court of Appeal matter ruled “that an exclusive use by-law grants a statutory right rather than a common law interest in land”, something the adjudicator took into consideration. Mr Walker continues: “As such, the rights under an exclusive use by-law attach to the lot and benefit the occupier of the lot for the time being. The adjudicator noted that under section 180(4) of the act an owner cannot be prevented from leasing or otherwise dealing with their lot and that arguably this extends to the exclusive use rights that attach to the lot.”
It’s a double-edged sword however, so you do need to read your by-laws carefully.
“If a grant of exclusive use is properly approved in a general meeting there is no restriction on how and to whom a body corporate can choose to allocate common property for exclusive use. However, pursuant to the regulation module applying to the scheme, an exclusive use by-law can impose conditions, including conditions regarding payments to the body corporate or lot owners.”
One of our clients recently rented a city carpark for $325/month, so there can be good income if you don’t need that rectangle of concrete for yourself.
But check your building’s by-laws. Check the Body Corp Commissioner’s website. Get your solicitor’s advice. And don’t be afraid to ask what may seem like a dumb question. There’s a good chance your neighbour’s wondering the same thing!