ACT: Can owners corporation rules restrict short-term letting, share houses, visitor parking and home businesses?

Question: We are reviewing our House Rules in the light of the amended ACT legislation and trying to clean up and simplify the wording of the existing rules. Can we include regulation around the following topics?

I live in a small community of townhouses and am on the Executive Committee. We are reviewing our House Rules in the light of the amended ACT legislation and trying to clean up and simplify the wording of the existing rules.

Can we legitimately:

1. prevent owners putting their unit on the short-term rental market, eg Airbnb
2. limit the number of adults that can live in a share-house arrangement;
3. limit how frequently, for how long, and who can park in our limited visitor parking, and
4. prevent a resident from running a home-based business?

Answer: The questions raised do not lend themselves to yes or no answers. The issues are detailed.

The questions raised do not lend themselves to yes or no answers. The issues are detailed.

On the issue of short term letting and over-crowding, chapter 12 of my book which is currently on sale for $20 including postage and handling from the Kerin Benson Lawyers website (see information including a link at the bottom of this post) sets out how this works. There are a few moving parts to this which are not detailed in your question and therefore I am unable to answer the question. However, short term letting is permitted in some parts of the ACT.

Chapter 3 of my book deals with rules (and includes sections on car parking). In short, some steps can be taken to limit unauthorised parking in visitor car parking.

3.19 More on car parking granting: Aside from the grant of special privilege rights for car parking, car parking rights can be provided in other ways including the owners corporation granting:

1. an easement over any part of the common property to park the motor vehicle common property; ¹ or
2. a licence over a specified part of the common property. The ACT unit Titles legislation is silent as to the granting of licences by owners corporations.

Note that while section 20(2) of the UTMA prohibits the transfer, sublet or mortgage of the owners corporation’s interest in the common property, a licence does not involve any of these actions. A licence simply provides the contractual right to park on common property.

In this regard, it should be noted that there is a difference between a lease and a licence. A lease creates an interest in the land which can be transferred to the lessee for the period of the lease as well as granting exclusive use of the land. A licence does not create or transfer an interest in the land nor does it allow the exclusive use of the land.

3.20 Wheel clamping. The general position is that wheel clamping is not permitted in the ACT unless a contractual agreement to do so exists or informed consent has been given.

As there is no legislation addressing this issue, the position is governed by the common law.

A tort is an act or omission by one person constituting an infringement of an interest of another person recognised by the common law as being worthy of protection and giving rise to a right of civil action. The common law has a number of torts (trespass to goods, conversion and detinue) which might apply where an owners corporation attempts to wheel clamp a car without the agreement or informed consent of the owner on the basis that to wheel clamp a car is an unjustifiable denial of the owner’s rights to the car.

Owners corporations should have no problem in creating a rule relating to parking in visitor spaces and wheel clamping provided the development consent or a covenant on the property do not make some express contrary provision in relation to owners or occupiers parking in visitor spaces. However, such a rule can only apply to owners and occupiers. Visitors will not be bound by such a rule as visitors will not have consented to that rule.

Proving a breach of the rule (with a view to issuing penalties on the owner or occupier) will require evidence as well as obtaining an order from ACAT to enforce the rule.

To deter visitors (as opposed to owners or occupiers) from unauthorised parking on common property, the owners corporation will probably need to:

1. install a boom gate; or
2. introduce time zones and have Access Canberra Parking Operations enforce these time zones. This will require an approach to Roads ACT to submit a traffic control device (TCD) plan showing the area, line markings and signage. Once a TCD is submitted and Roads ACT has confirmed its approval the owners corporation can approach Parking Operations to request the time zones be enforced.

Apparently, resident parking permits will not be issued on private land given adequate parking spaces are a factor in the development application process. Resident permits are issued for four areas in the ACT where there is likely abuse of residents parking facilities by office workers from nearby buildings and limited arrangements for on-site resident parking. These areas include:

1. Bega and Allawah Flats, which are Government Housing Trust flats;
2. Argyle Square; and
3. Havelock House.

Footnotes:

1. Unit Titles (Management) Act 2011 (ACT) s 20

On the issue of a home based business, there are some issues around this (see chapter 8 of my book on Work, Health and Safety) but very generally speaking, people are able to run a business from home.

Christopher Kerin
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060