WA: Q&A Access to Apartments and Common Property

There is no legislation that prohibits the strata company / strata manager from holding a master key for all units. However, the scheme should discuss and document at the AGM or in a by-law who will hold the master key, the protection and security of the master key and when/if it can be used as per the requirements of the Strata Titles Act.

If you are referring to a construction master key, once the resident uses their key in their lock for the first time, some ball bearings in the lock are displaced, and the construction master key will no longer work.

Jamie Horner Empire Estate Agents E: JHorner@empireestateagents.com P: (08) 9262 0400

This post appears in Strata News #677.

Question: A resident refuses to clean the communal BBQ after use. They state they pay levies, so the professional cleaners employed by the complex should handle the cleaning. How do we respond?

I reside in a 146 lot strata complex. We have a BBQ in our common area, accessible to residents via a booking system. Despite clear signs instructing users to clean the BBQ after each use, this is not done. We have identified the responsible individuals, but they persist in leaving the BBQs dirty even though we’ve made multiple requests.

The council of owners has written to the resident responsible, but a resolution hasn’t been reached. They respond that professional cleaners employed by the complex should handle the cleaning since they pay their strata fees for this service.

Answer: If the strata company has a water tight by-law for cost recovery, it would be reasonable for the strata company to on-charge the cleaning cost.

Charge them for their sausages!

If the strata company has a water tight by-law for cost recovery, it would be reasonable for the strata company to on charge the cost of cleaning of the common area BBQs to the end user.

Without such a by-law, the strata company may choose to on-bill but may not be successful in recovery.

Luke Downie Realmark E: ldownie@realmark.com.au P: 08 9328 0999

This post appears in the November 2023 edition of The WA Strata Magazine.

Question: Is it compliant to close a common laundry in an older strata block if there are no laundry facilities in the individual units?

I live in a strata-managed complex of 8 units built in 1986. We had a common laundry on site, but the units have no current washing facilities.

The owners have been advised of changes to the common laundry arrangements at the scheme. The washing machine and maintenance supplier advised that it is no longer viable to maintain the washing machine at the address due to its age and condition. The supplier subsequently removed the machine. Noting reported vandalism to the coin box and ongoing issues with the maintenance cleanliness of the area, the council of owners has opted not to replace the machine at this time. The laundry area must be cleared of any personal property to avoid disposal. The area will be locked until further notice. Residents have been advised that there are laundromat facilities within the suburb. Should owners wish to install plumbing for a washing machine connection inside their unit, they must request approval for these works prior.

How does this affect compliance? Can the laundry be shut down without any laundry facilities in the units?

Answer: The communal laundry must be reopened if the units cannot accommodate laundry facilities.

Most residential strata-managed buildings are made up of Class IA or Class II dwellings. The Health Act (Laundries and Bathrooms) Regulations apply to most buildings in Western Australia and provide that laundry facilities must be provided to Class IA and Class II dwellings.

The specific requirements for laundries depend on how many bedrooms are in the units.

Multiple-bedroom units

If the units have more than one bedroom, they must be supplied with their own private laundry facilities inside the unit.

Each unit must have:

a wash trough of at least 36 litres;

plumbing, electricity and sufficient space for a washing machine and drying machine.

Single-bedroom units

If the units are single-bedroom units, the residents can be provided with either:

the same facilities as multiple-bedroom units; or

access to communal laundry facilities.

If the owners opt to provide a communal laundry, it must have:

at least one washing machine of at least 4kg capacity;

at least one wash trough of at least 36L; and

either a drying machine or at least 30 metres of clothesline.

The number of communal laundries is determined by how many bedrooms are in the complex. If all of the eight units are single-bedroom units, then only one communal laundry is required.

Mixed-bedroom units

If the eight units in the complex are a mix of single and multiple-bedroom units, the multiple-bedroom units must have their own laundry facilities. The single-bedroom units may share communal laundry facilities in accordance with the number of bedrooms. For example, if four of the units have multiple bedrooms and four of the units have only one bedroom, then the complex must have one communal laundry. In a larger complex, for example, where there are 35 single-bedroom units, three communal laundries would need to be provided.

Summary

The communal laundry in the complex can be shut down, but only if all units have a 36L wash trough and capacity for a washing machine and dryer. If the units cannot accommodate laundry facilities, the communal laundry must be reopened.

Hannah Orloff Douglas Cheveralls Lawyers E: Hannah@dclawyers.com.au P: 08 9380 9288

This post appears in Strata News #627.

Question: Our car bays show “for the use of no XX” on our strata plan. Are they common property or lot property?

Can our council of owners request the use of my designated car bay in WA? The car bays are on the strata plan registered with Landgate. Beside each car bay on the plan is printed “for the use of no XX”.

The council of owners decided to meet at a few car bays and requested the relevant owners temporarily move their cars. How can they ask this if the space is part of an owner’s lot?

Answer: For the car bay to be legally allocated to the lot, you must have a registered by-law confirming the exclusive use.

The car bays may be common property. Unfortunately, many older schemes note this on their strata plan, but “for the use of no XX” has no effect unless a by-law has been registered. For the car bay to be legally allocated to the lot, you must have a registered by-law confirming the exclusive use, then the car bay is lot property. If there is no registered by-law, they are common property.

Many schemes have overcome this by registering an exclusive use governance by-law, which requires a resolution without dissent.

Jamie Horner Empire Estate Agents E: JHorner@empireestateagents.com P: (08) 9262 0400

This post appears in the September 2023 edition of The WA Strata Magazine.

Question: Our electric gate is closed overnight and the intercom system is broken. We are questioning whether an intercom is necessary. What happens if the gate is closed and emergency services need access?

I’m the treasurer for a 7 unit gated complex. Our gate is open between 8 am and 6 pm. Currently, the intercom system is not working and the quotes to fix it are quite expensive.

Some of the lot owners are questioning why we need an intercom system when everyone has a mobile phone. However, what happens if the gate is closed and emergency services need access? Are any legal requirements for a gated complex to have a fully operational intercom system?

Answer: There is no legal requirement for all electronic vehicle gates to have an operational intercom system to each lot.

There is no legal requirement for all electronic vehicle gates to have an operational intercom system to each lot. As the primary responsibility of the Council is to ensure that the common property is maintained, we suggest a motion on notice be included in the next general meeting agenda for all owners to resolve whether to reinstate the intercom system or not. Discussion may include why the security gate remains open for a considerable amount of time during the day. Would it be more practical to have a security gate remote in an on-site lockbox for the use of contractors and emergency services?

What happens when your scheme has secure access or security gates, and the emergency services need access?

FIRE

Usually, in the event of fire, the fire panel is triggered directly alerting the Fire Brigade to attend. In many multi-tier schemes, once the fire panel activates the electric security gates should open automatically to allow people to evacuate. On smaller complexes, this may not be the case. It would be prudent to determine the setup with your scheme’s fire services provider and gate installation provider. In the event of an emergency, the Fire Brigade may need to damage common property to gain access.

POLICE

The local police station can be provided with a lockbox code in order to gain access in the event of an emergency. It would be the Strata Company’s responsibility to ensure that the local police station is kept up to date when the code changes.

AMBULANCE

St John Ambulance do keep a register of lockbox codes to assist in gaining access in the event of an emergency. It would be the Strata Company’s responsibility to ensure that the register is kept up to date by completing the prescribed form and returning it to St John Ambulance.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

This post appears in Strata News #627.

Question: A common property bulk storage area in our apartment building has recently been turned into a “Men’s Shed” without a vote at an AGM. Does a decision like this require a vote without dissent at an AGM? Also, the area is now only accessible to those that buy a key to the space.

Answer: The elected Council of the Strata Company has the authority to control and manage the common property for the benefit of all the owners of lots.

Overarchingly, the elected Council of the Strata Company has the authority to control and manage the common property for the benefit of all the owners of lots. Further, a strata company may improve or alter the common property in a manner that goes beyond what is required under subsection 91(1).

Schedule 1 4(1) 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 and a meeting of the council at which a quorum is present is competent to exercise all or any of the authorities, functions or powers of the council.

If a storeroom area forming part of common property was lying dormant, perhaps the Council felt transforming it into a Men’s Shed was in fact an improvement, to build a greater sense of community within the scheme.

The question may revolve more around transparency, rather than authority. Would it have been prudent to present this to all owners at a general meeting, or as a circular motion, as an ordinary resolution – yes. Then, any costs incurred, insurance risk potential, and terms of access could have been addressed with all owners, prior to the conversion.

You are able to request a motion on notice be included for your next general meeting on this matter. Be sure you provide it to your Secretary well ahead of time, and, that the motion be worded in such manner as to request a vote in the affirmative.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

This post appears in Strata News #589.

Question: For the past two years I’ve been paying a quarterly fee to use a car stacker which I do not hold an access key for despite repeated requests. How do I resolve this?

I purchased an apartment in Perth a year ago. I’m paying a quarterly fee of $87 to use a car stacker which I do not hold an access key for.

Our carpark is very limited and often full, leaving me to park on the street out the front of the apartment. This puts my car at risk of vandalism which is a common occurrence in our area.

I have emailed the strata company on a few occasions to request a fob key to access my bay within the car stacker but have been given various stories as to why they are unable to provide it – eg, the neighbour has the fob and took it overseas, even though his partner is still living next door.

I’m frustrated I have to park my car on the road in an unsecure place when I am paying a quarterly fee to have access to a secure bay, despite repeated attempts to get the strata company to provide me with the key.

Answer: You may wish to request a full refund of the quarterly fee for this entire time due to lack of access being provided by the Strata Company.

It is difficult to ascertain from the details as to how the car stacker is utilised at the site.

If you are paying a fee for the use of the car stacker, it would appear you certainly are allocated the use of the car stacker. You may want to follow up with the Strata Managers and request they submit your communications to the Council of Owners. In your communications to the Council of Owners you may wish to express your frustration with trying to obtain access and details on how the car stacker works and why you haven’t been able to obtain access to the car stacker. You may wish to request a full refund of the quarterly fee for this entire time due to lack of access being provided by the Strata Company.

There would be bylaws that provide the detail on who has access to the car stacker, and the payments to be made for it etc. You may wish to ask the Strata Managers to provide these details to you.

If you are entitled to the use of the car stacker, and you appear to be as you are being charged for it, then you will need to be direct with the Strata Managers to obtain it.

Shelley Fitzgerald Emerson Raine E: shelley@emersonraine.com.au P: 9330 3959

This post appears in Strata News #579.

Question: One lot’s balcony houses the electricity meters for the building. They want to fully enclose this area. What is the position on this for both the owner and for future access to the electricity meters?

Some time ago, owners on the ground floor of our building enclosed their balconies under restricted access. The balconies are titled.

One unit’s balcony houses the electricity meters for all units. This balcony was part enclosed. The lot owner is selling and wants to fully enclose their balcony area, restricting access to the electricity meters.

What is the position on this for both the owner and for access to the electricity meters?

Answer: The lot owner is required to provide access to the common meter for a variety of valid reasons.

Placing utility meters within the boundaries of one particular lot, when they service multiple or all lots, is extremely impractical, but it does happen.

Not having access to the plans and bylaws to make a clearer determination, we can only provide general advice.

Under Section 63 of the Strata Titles Act 1985, there is an implied Utility Service Easement

Utility Service Easement

An easement (a utility service easement) exists for the benefit and burden of each lot and the common property in a strata titles scheme to the extent reasonably required for the provision of utility services to each lot and the common property.

A utility service easement entitles the strata company, and the owner of a lot, in the strata titles scheme –
1. to install and remove utility conduits; and
2. to examine, maintain, repair, modify then replace utility conduits.

An owner or occupier of a lot must not, either within or outside the lot, interfere or permit interference with utility conduits or a utility service provided by means of utility conduits in a way that may prejudice the use or enjoyment of another lot or the common property in the strata titles scheme, other than in the reasonable exercise of rights under a utility service easement.

The lot owner is therefore required to provide access to the common meter for a variety of valid reasons, including having the meter read by a contractor engaged by the Strata Company, the electricity service provider or in the event of an emergency.

If it has been indicated that the electricity meter is to be enclosed, it may be that this is not possible in accordance with advice from Western Power or your local Council. Approval to have the utility service moved to a more suitable location could be cost-prohibitive and would require a resolution without dissent at a general meeting of the Strata Company.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

This post appears in Strata News #573.

Question: A non-resident owner allows her boyfriend to park in our limited visitor parking. Are they in breach of the bylaws?

We have a limited visitors parking area which can only take two cars at any time in our small strata complex of three townhouses. Two of our townhouses are owner occupied and the third is rented.

Although the owner of the rented townhouse does not live in the complex, her boyfriend has parked in our visitor parking area 24/7 for a month, and therefore is preventing the other owners from using this space.

Are non-residents entitled to use our visitors parking?

Answer: It would appear the owner of the lot may be in breach of the bylaws

I would offer the following comments, with the usual disclaimer that this is a comment only as we have not been provided with any documents in relation to this particular property. The reader may wish to seek further or legal advice.

If the visitor parking area is common property, and the strata company has no registered bylaws except the Standard Schedule 1 & 2 bylaws, then the following bylaws would be relevant:

STRATA TITLES ACT 1985 – SCHEDULE 2

1 . Vehicles and parking

An owner or occupier of a lot must take all reasonable steps to ensure that the owner’s or occupier’s visitors comply with the scheme by-laws relating to the parking of motor vehicles.

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the strata company.

[By-law 1 inserted: No. 30 of 2018 s. 99.]

2 . Use of common property

An owner or occupier of a lot must —

use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and

not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier; and

take all reasonable steps to ensure that the owner’s or occupier’s visitors do not behave in a manner likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or of a person lawfully using common property; and

not obstruct lawful use of common property by any person.

[By-law 2 inserted: No. 30 of 2018 s. 100.]

The use of visitor’s bays is very broad unless the Strata Company has registered bylaws that could provide for the specific use of the bays such as time limits, visitors to the occupiers of the property only, types of vehicles and the penalty for non compliance.

Are they entitled to use the visitor parking? In accordance with Schedule 2 Bylaw 1, as this person is not the owner or the occupier of a lot then they have no right to the use of the visitor parking bays. It would appear that the owner of that lot may be in breach of the bylaws however that is dependant on whether they provided permission for this vehicle to park there and use it for long term use.

The first approach should be to the owner of this unit advising that you are aware the owner of the vehicle does not live on the site and is utilising the visitor parking bay for long term parking. You would request they arrange for the vehicle to be removed from the site and you may wish to provide a time limit for this to happen.

Should you not be able to resolve this with this owner, the remaining 2 owners may have to convene a General Meeting to determine whether you proceed with the issuing of a formal breach notice/s, and progressing to SAT to resolve the matter. Section 47 provides the details for the enforcement of the scheme bylaws.

Shelley Fitzgerald Emerson Raine E: shelley@emersonraine.com.au P: 9330 3959

This post appears in the November 2021 edition of The WA Strata Magazine.

Question: Is your strata manager required to notify you of common property works such as resurfacing the driveway? If so, how much notice should they give residents?

Our block of units has a shared common driveway that is being resurfaced for an unspecified time frame. We were not given any notice or information of any kind by either our strata manager or our landlord until the day and time of work.

Is your strata manager required to notify you of common property works? If so, how much notice should they give residents?

Answer: The Strata Titles Act advises “reasonable” notice

This question is a frequent query, and the Strata Titles Act advises “reasonable” notice. There is no definition of “Reasonable” within the Act.

Property Managers, under the Residential Tenancies Act, are required to give 72 hours written notice for ‘necessary maintenance and repairs’ – note, this is for access to the property, although most property managers would aim to give their tenants at least 7 days’ notice. Many Strata Companies send notices of works to the owners and property managers, but the actual residents are not unaware of the notification.

With section 105 of The Strata Titles Act, the roll should also include the tenant details, which if updated, could ensure the resident is also made aware of such works. Strata Managers usually send notices to the Owners and their property managers for works planned. Some Strata Managers also send to the tenants if their details are on the roll database.

The amount of notice that is given could be different depending on the works that are being carried out and the disruption that may be caused to residents i.e. If contractors are on site but there will be little to no disruption, the amount of notice that is ‘reasonable’ would be less than notice for works that are going to impact the residents. Sometimes, in emergencies, notice is short, but if the works have been planned, it would be best practice to give as much notice as possible.

In the example provided in the question, the Strata Company might have FIFO workers, and their vehicles could be in the parking bays or driveway for 2-3 weeks at a time. In such circumstances, it is likely that the works have been planned, probably since the last general meeting and budget approval.

Therefore, best practice would be for such large works for the Strata Company to provide over three to four weeks’ notice, with a formal letter, then weekly reminders and a final letterbox drop the week of the works. That way residents would be given every opportunity to be informed of the driveway works.

Debbie Morley B Strata E: debbie.morley@bstratawa.com.au P: 9382 7700

This post appears in Strata News #476.

Question: If a person living in strata needs an ambulance and calls 000, how do the paramedics gain entry into the apartment complex if the person is immobile?

In the event of an 000 call from a person living on their own in strata, and needing an ambulance, how do the paramedics gain entry into the apartment complex if that person is immobile and unable to let them in?

Does St John Ambulance have a similar app like DFES (I think it’s called IRIS) that can somehow give access into the building? Security is great except in emergencies.

Answer: Ambulance officers are highly skilled in medical emergencies but gaining access into a locked unit is generally beyond their scope of expertise.

Ambulance officers are highly skilled in medical emergencies but gaining access into a locked unit is generally beyond their scope of expertise. This situation is far more common than you think and during my time as a firefighter in Western Australia, a call out of this nature could be as common as once or twice per week.

In Western Australia, firefighters are empowered by the WA Fire Brigades Act 1942 which give authorised officers permission to make forced entry into a public or private property if they believe human life is threatened due to fire, hazardous materials or a medical emergency.

Fire appliances are fitted with modern equipment specifically designed for gaining access to buildings in such cases, leaving the ambulance officers free to deal with the patients’ needs. On multiple occasions, my crew and I were called out to force entry into units because of a medical emergency and when the occupant had to be taken to hospital, we stayed behind and assisted with securing the premises by getting in contact with the next of kin, Strata Manager or Building Supervisor to carry out the required work so the unit is not left unsecured. Having these after hours numbers available in either your unit or in a building common area can save a lot of time as emergencies do happen 24 hours a day not just during office hours.

David Young Fire Escape E: enquiries@fireescape.com.au

This post appears in Strata News #370.

Question: Coming home to find my garage wide open, I discover one of the lot owners has a universal remote. How can one lot owner have access to another lot owner’s strata apartment in the building?

I am an owner occupier of one of 7 units in my scheme. My unit has a garage with its own access.

On returning home from work one day, my garage door was wide open. I have items stored in the garage.

I have discovered 1 lot owner holds a universal remote and he had been checking to see if the remote was working.

It concerns me greatly that owners were not made aware of the universal device. I have been an owner for 4 years and part of the council previously.

Shouldn’t these types of devices be held by Strata Management rather than an individual owner? How does a strata scheme function when one lot owner has adversely impacted the security of the other lots? How can one lot owner have access to another lot owner’s strata apartment in the building?

Answer: This depends on whether the garage is considered part of the owners lot or common property.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

This all depends on whether the garage is considered part of the owners lot or common property.

If it is part of the owners lot; put simply no owner or strata manager should have an access device for this. Unless there is a specific by-law in place.

The owner should confirm it is their lot and there is no by-law in place. Then raise their concerns and express the issue of security and safety to their strata council care of the strata manager.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #240.

Question: I have access problems with my next door neighbour. I was told there was a bylaw granting me access to a rear gate. How do we resolve this?

I live in a unit within a 4 unit strata complex in WA. When I purchased the unit, I was told there was a bylaw gaining me access from my property through the next door unit’s back area via a gate in the dividing fence between the said units for lawn mowing, mulching etc.

This has never been a problem in the past, however, of late this has become unacceptable to the tenant. The gate has been blocked by ropes, timber and stones.

We have contacted the owner of the next door unit who agrees access should not be restricted in any way. For emergencies, this lack of access is totally against the agreement I accepted on the purchase of the unit. I understand that tenants are entitled to privacy, however, should a fire or relevant disaster occurs in our property we have no accessible egress from the rear of our unit.

We have always notified tenants of the need to access through the adjoining gate, with no objections whatsoever. Lately, access is never convenient.

I contacted my Strata Manager and was notified the tenant had put in a complaint of harassment. Should I have the need to access her property in the future, I need to give 5 days notice to my Strata manager and they will negotiate a convenient time.

I did what was requested and notified in advance. I have notified my Strata manager in writing of my concerns regarding the blocked access and my objection to being filmed while doing what I require to do during the gate being opened.

My question is, what are my rights and how should I approach this matter?

Answer: Your strata manager your strata manager is 100% correct that 5 days notice is sufficient.

After reviewing the bylaws, there seems to be no specific by-law relating to access to the lot.

Therefore, your strata manager is 100% correct that 5 days notice is sufficient.

My suggestion would be to knock on the neighbour’s door with a bottle of red and become friends… Easier said than done but you will have peace of mind, either way, it goes down.

Unfortunately, when people buy strata titled properties, there may be misunderstandings about what real estate agents refer to.

Jordan Dinga Abode Strata P: 08 9368 2221 E: abode@abodestrata.com.au

This post appears in Strata News #237.

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