Within a Community Title Scheme (yes, I am referring to your “body corporate”) this is a very common statement that we hear often from people – “But I don’t use it, so why should I have to pay for it?”. Some recent examples of this statement are:
- I don’t use the swimming pool – why do I need to pay for it to be heated?
- My windows are on the ground floor and I clean them myself – why do I need to pay for all the other windows being cleaned?
- I don’t wash my car on the common property – can’t the Body Corporate charge the users of the common property water in the car washing bay?
- Looking at that last example, as one of our very astute readers recently commented, not all owners will wash their vehicles and some owners will wash their cars more than others (some owners or occupiers may not even have a car to wash!).
So – with the unfortunate volunteer committee members again having to be the “fun police” – how does a Committee deal with these types of questions?
The scope of a resident’s ability to perform certain activities on common property can be uncertain, particularly if there is no clear regulation with a Body Corporate’s by-laws.
The example we will use today is the ability for residents (owners and occupiers) to wash and clean their vehicles on common property in the car washing bay (ie, in a designated bay).
When we consider the regulation of this activity, we need to consider many aspects including:
- Nuisance of the activity – is the facility contained within (and part of) the common property?
- A resident’s right to undertake a normal activity
- The cost to use the common property including common property water and power
- •EPA/Council controls/impact – detergents, oils and disinfectant wastewater is not permitted to enter the public stormwater drainage.
Firstly, is there a specified area allocated to car washing by the Body Corporate and secondly, is there a by-law regulating the matter?
If there is no specified area within your building/basement, then it is quite possible that washing your car on common property will cause a hazard. Council issues may arise with the common property not having proper drainage, or a proper system with an arrestor pit to stop contaminants going into the stormwater system. Many complexes will lack proper drainage, a dedicated car washing bay and the availability of water to allow residents to properly wash their vehicles.
If this is your situation, then it may be reasonable for a Body Corporate to refuse to allow residents to wash their cars on common property. The chemicals and substances used to wash/clean the vehicle could cause damage to the common property (pipes, plumbing and drainage) and run off into the stormwater drainage.
If your body corporate does have a designated washing bay for vehicles with a proper drainage system that complies with Council regulations, then the by-laws ought to appropriately regulate the washing of vehicles on common property.
Such regulation will typically deal with:
- hours/time of use (ie, to limit disturbance, it is not to be used during the night-time)
- duration of use
- To be kept clean and tidy
- not to be used for any other purpose other then a car washing bay
Once a dedicated car washing bay is identified by the Body Corporate and an appropriate by-law is put in place, we can now deal with the question of “fairness”.
The inclusion of a car washing bay may be seen as a ‘beneficial facility’ to the scheme which can be a selling point for lots or tenancies. Whilst some owners may never feel the need or want to use the car washing bay, that is not to say a potential tenant or purchaser of that lot, would view the car washing bay in the same way.
Yes – washing a vehicle will increase water usage (and maybe electricity), but it is not for the Committee to police the use of common property water and electricity.
All body corporate lot owners must pay their share of body corporate costs, which is an intrinsic part of community living. The owner’s contribution schedule will detail what is their share of body corporate costs, which will include the shared cost of water usage for common property.
Every lot owner is aware that they will need to contribute to all common property expenses – despite the fact of whether or not they use them.
If lot owners have raised concerns about such expenses within your Body Corporate, then the first step is for the lot owners to come together to discuss this amicably. As a Committee, you might do this by putting forward the idea of a regulated car washing bay at a committee meeting. This will allow for the other members of the Body Corporate to be informed of the discussion towards the issue raised.
Obviously, how this is approached will be dependent of the size of your body corporate and the issues that are affecting your specific scheme.
If it is not physically (or legally) possible to allow the washing of vehicles on common property to continue, then it should at least be discussed thoroughly to ensure all parties are aware of the concerns and reasons as to why restrictions to this activity may be implemented by the Body Corporate.
Alternatively, the discussion might result in an arrangement to ensure car washing is regulated in the by-laws, together with communicating this to all owners and occupiers.
The argument of “I don’t use it, so why do I have to pay,” should have no traction within a community living environment. Living in a “community” requires tolerance, respect and an understanding that community property will be used in different ways by residents (or some residents may choose not to use that property at all). But that is a choice – just in the same way that a resident may choose not to use the swimming pool or tennis court or the communal laundry room.
This article was contributed by Juliette Nairn, OMB Solicitors