Question: The small number of commercial lots in our building are outnumbered by the residential lots. Decisions are not made fairly. What can the commercial residents do?
Our building has a small number of commercial shops and a larger number of residential lots. Our council of owners members are all residential lot owners, and use this power to harass the commercial shops.
There is continual conflict about common areas between the residents and the shops.
Shops have brooms, mops, buckets, boxes, old oil from fryers, etc, and although these items are kept neat and tidy, commercial residents constantly receive emails demanding these items be removed. However, residential residents also store multiple items such as furniture under common area stairs and pot plants on common area decks.
Common property, exterior, windows, doors etc, in the residential areas are being constantly renovated while the commercial common areas are always last on the list.
This ongoing aggravation causes angst for all shops and impedes the ability to run a business. What can the commercial residents do?
Answer: How involved have the owners of the commercial lots been in the decision making processes? Do they attend general meetings or nominate to sit on Council?
My first question would be, whether you are a tenant of the commercial lot, or the owner? As an owner is a tenant in common, they are able to contribute towards the decisions being made by the Strata Company.
How involved have the owners of the commercial lots been in the decision making processes? Do they attend general meetings or nominate to sit on Council?
The powers and duties of the Strata Company must, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the Council of the Strata Company.
Decisions as to the expenditure of funds are in most cases approved at a general meeting of the Strata Company. If the commercial lot owners are unwilling (or uninterested) in attending, they are able to authorise a person who is a tenant to act as their proxy. This could provide an opportunity for the tenant to contribute to the meeting and understand why certain decisions are being made and vote accordingly in the best interests of the lot owner they’re representing.
The second question would be, are there any terms within the lease agreement between the lot owner and the tenant with relation to common property? Is there any agreement in place between the lot owner and the Strata Company in regards to the areas being used for the storage of goods – either in the residential areas or the commercial?
Thirdly, the question would be, are you aware of whether there are any bylaws above the standard Schedule 1 and Schedule 2 bylaws, which apply to the scheme? These may incur rights and/or responsibilities over the usage of common areas.
Section 45 of the Act outlines who must comply with the bylaws as if they were deed signed by each person. This includes owners, occupiers or lessees and all invited persons to the scheme.
In essence, it’s important that you educate yourselves as to the responsibilities of the Strata Company and each party involved; in accordance with the Strata Titles Act & Regulations, scheme bylaws – and any other written law, which includes the amended Work Health & Safety Act 2020.
If the bylaws state no items are to be left on common property without authority from the Council of the Strata Company – then no items are to be stored on common property (unless properly authorised), and everybody must adhere to this direction. Even if a lot owner were to be granted Exclusive Use over a portion of common property, they still have obligations to adhere to.
The final consideration is insurable risk. What is the potential risk of damage to person/property by each of the items which have been left on common property. Flammable hazard? Trip or slip hazard? I would concur such items are not to be stored on common property.
If you find that no amicable resolution with the Strata Company is possible, the owner or occupier may apply to the State Administrative Tribune to have the matter heard – but ensure you are across all of the facts before taking this measure, and you may wish to seek legal advice to assist you with your application.
This post appears in the December 2022 edition of The WA Strata Magazine.
ESM Strata
E: info@esmstrata.com.au
P: 08 9362 1166
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