Does an owners corporation have the right to charge rent on common property a lot owner has been using for years?

A lot of apartment and unit owners have spaces which they have as their private garden or use for parking their car. However, in many cases, that space is actually common property and not within the person's private lot. The question remains to be asked - What is the person's legal right to occupy that space?

Owners Corporations may lease or licence common property to lot owners (or other third parties) in accordance with Section 14 of the Owners Corporations Act 2006.

But sometimes, leases or licences were never obtained or were obtained by a prior owner and never assigned.

A lot owner has no exclusive right to occupy exclusively any part of common property unless there is a valid and binding licence or lease of that space supported by a formal written lease/licence which has been approved by a valid resolution of the Owners Corporation.

Owners Corporations can only agree to lease or licence common property spaces through passing a special resolution, which means a committee does not have the power to grant a lease or licence.

Too often we see lot owners making claims to common property because the land was advertised as part of the sale of the private lot. However, this will not save the use. A lease or licence must be obtained.

In addition, the Model Rules prohibit any private lot owner using any part of common property as part of their private garden (unless a lease or licence has been granted).

As part of a lease or licence, the Owners Corporation has a right to seek rent. Usually that rent will be based on a market assessment or otherwise as agreed by the owners corporation.

If a lot owner does not have a valid lease/licence then they will need to give up any exclusive right, even if that use has been for many years.