This is not to be construed as providing legal advice, or as prescribing how any particular owners corporation should manage its affairs. It is a summary, in layman's language wherever possible, of how some important concepts are provided for in the legislation, and how owners corporations might take account of those provisions when formulating their management philosophies and procedures.
As the world moves away from fossil fuels and towards electric vehicles, the fundamental issue for any owners’ corporation (OC) is to what extent the OC may wish to attribute the cost of charging electric cars to owners who are participating. Generally, electric cars can be charged in the allocated car spot via common property power or individually metered power, both of which have issues. Alternatively, visitor spots or other areas could be converted to dedicated charging stations.
Options for use of common property power include:
1. The OC can create a special purpose fund to which electricity users can contribute via a special levy.; OR
2. The OC can determine a contribution to a general fund; OR
3. To encourage ‘green behaviour’ the OC could determine that the common property power is provided at zero cost to electric cars.
For EV users to fully fund their vehicle choice, units can arrange a dedicated charging point for their EV, paying for the connection and the power. Generally, this would require OC approval as modifications in A Class buildings would require power points / cabling on common property.
This paper outlines the options available to OCs under the current UT(M)A provisions to put their views on ‘user pays’ into effect.
Class A basement car parking
The usual Class A model is basement parking with each unit assigned one or two parking spaces. The following suggestions can be ‘mixed and matched’ to offer more options.
1. The owners corporation agrees to an ‘honour system’ under which the owners using extra power agree to pay a Special Levy to a Special Purpose Fund to cover the estimated cost of their power usage.
This can be done under existing legislation and does not need special metering. This plan allows the early adopters to be accommodated and causes least disruption for other owners. It assumes also a high level of honesty by the early adopters.
74 Special purpose fund
(1) An owners corporation for a units plan may, by special resolution, establish funds for particular purposes (a special purpose fund).
(2) The purposes for which a special purpose fund may be used may only be changed by special resolution of the owners corporation.
So that requires a 2/3rds vote.
But in order for only some owners to pay a levy you also need an unopposed resolution to that effect.78 General fund—contributions
(1) An owners corporation for a units plan may, from time to time, determine a contribution (a general fund contribution) required from its members for the corporation’s general fund.
(2) The general fund contribution payable for each unit is—
(a) the proportional share for the unit of the total general fund contribution; or
(b) a proportion of the total general fund contribution worked out in accordance with a method set out in an unopposed resolution.
(3) A resolution under subsection (2) (b) may provide that only stated unit owners, or unit owners in a stated class, are required to pay a particular contribution, or a contribution of a particular kind.
(4) A resolution under subsection (2) (b) may only be—
(a) amended by unopposed resolution; and
(b) revoked by special resolution.
It does require
electric car owners to be honest about the power costs so that a Special Levy can be struck; and
a mechanism for adapting to changed circumstances.
If the resolution for a special levy is opposed, the OC could develop more complex arrangements. If non-users vote against the levy, the EC and/or potential users can ask ACAT to pass the resolutions and institute the scheme.
2. A contiguous group of parking spaces is designated for a car charging area and a special meter(s) is installed.
The owners corporation may have extra car parking spaces for visitors or tradespeople. The owners corporation owns those spaces and can repurpose them, BUT that would depend on whether the approval of the development is contingent on a particular number of visitor spaces etc.
The owners corporation would go through the same processes as 1 above to have a special purpose fund and a special levy on the users of the recharging area and they would pay the installation and the power use and any long term maintenance.
Different levels of special levy depending on the amount of car usage and charging would be appropriate.
Installing a meter would allay the fears of those who think they will be paying for recharging cars they don’t own, despite the commitment to honesty by electric car owners. And it makes easier at ACAT to argue that voting No to a special levy is unreasonable.
3. Owners are responsible for themselves and each has to install an individual meter probably on common property.
The granting of a Special Privilege could deal with the issue of using common land and/or wall to install what could be individual meters or a meter serving a small group. The grant would require an unopposed resolution.
22 Special privileges relating to common property
(1) An owners corporation for a units plan may, if authorised by an unopposed resolution, grant a special privilege, other than a sublease, for the enjoyment of the common property, or any part of the common property, to—
(a) a unit owner; or
(b) someone else with an interest in a unit.
(2) A grant under subsection (1) may be terminated, in accordance with a special resolution, by written notice given by the owners corporation to the person to whom the grant was made.
Tactically the owners corporation would seek a number of approvals in a number of areas, so that any opposing votes could be more easily argued before ACAT as unreasonable and probably ACAT would make an order passing the resolution.
Going to the trouble of granting special privileges might sound overkill but cases have come before ACAT requesting an order to remove something hung on a common land wall without a special privilege and ACAT has ordered its removal.
Some owners might possibly be deterred by the cost of installation of individual meters.
4. Grouping the electric cars together and the owners share the costs of meter installation and power
The Minor Boundary Change provisions of the Unit Titles Act would allow the parking spaces owned by the owners/would-be owners of electric cars to be swapped so the electric car spaces can be grouped together facilitating the operation of meters dedicated to charging cars.
This could cut down upfront costs to the electric car owners and be more acceptable to non-participant owners - out of sight so out of mind. But a common charging meter could eventually lead to debates among the users of that meter that some are using more power and freeloading on the others. While that debate would be between the owners of the electric cars, the executive committee and the owners corporation could be drawn in.
16 Minor boundary changes
A minor boundary change is a change to the boundaries between units, or between units and the common property, to which all of the following criteria apply:
(a) the change would not involve any change of the boundaries of the parcel;
(b) the change would not substantially change the units plan, or the proposed units plan;
(c) the change would not result in any inconsistency arising with the provisions of the lease (or any declared land sublease) under which any of the units, or the common property, is held;
(d) approval under this Act or any other relevant territory law for the subdivision and development of the parcel would still have been given if the proposals for the subdivision of the parcel under this Act, or any other relevant development proposals, had shown the boundaries as they are proposed to be changed.
Division 10.2 Minor boundary changes
149 Boundary authority—grant
(1) An owners corporation may apply to the planning and land authority for authority (a boundary authority) for the change of any unit or common property boundaries, together with any consequential amendment of the schedule of unit entitlement.
Note 1 A fee may be determined under s 179 for this section.
Note 2 If a form is approved under s 180 for an application, the form must be used.
(2) The planning and land authority may grant a boundary authority if satisfied on reasonable grounds that—
(a) the application is authorised by a unanimous resolution of the owners corporation made within 3 months before the application is made; and
(b) the corporation has obtained the written agreement of each interested nonvoter (except any interested nonvoter to whom subsection (3) applies); and
(c) the authorised boundary change is a minor boundary change; and
Note A minor boundary change is a change to the boundaries of the units or the common property that is described in s 16.
(d) if an amendment of the schedule of unit entitlement is authorised—the amendment is necessary to reflect accurately a change in the relative improved values of the units because of the change of boundaries as authorised.
(3) The planning and land authority may grant a boundary authority despite the owners corporation’s failure to obtain an interested nonvoter’s agreement if the planning and land authority is satisfied on reasonable grounds that—
(a) the corporation has made reasonable efforts to obtain the agreement; and
(i) the interested nonvoter would not suffer any substantial long-term detriment because of the proposed change; or
(ii) despite that failure, it is desirable to authorise the change having regard to the overall interests of everyone with interests in the units and the common property.
(4) If the owners corporation applies for a boundary authority that is to remain in force for longer than 3 months, the planning and land authority may, in authorising the change, if satisfied that an extended period is justified—
(a) allow the extended period applied for; or
(b) allow a shorter extended period.
150 Boundary authority—period of effect
(1) A boundary authority remains in force for—
(a) 3 months after it is given; or
(b) any extended period allowed under section 149 (4).
(2) A boundary authority must state the period for which it is in force.
151 Boundary authorities—registration
(1) On the registration of a boundary authority—
(a) the units plan is amended accordingly; and
(b) the land covered by each affected lease is the area of land indicated by the boundaries as changed.
Note A unit entitlement authority may be registered with the registrar-general under the Land Titles (Unit Titles) Act 1970 on lodgment by the owners corporation within the period of effect of the authority (see dict, def registered).
(2) A change of unit or common property boundaries under this section is not a variation of a lease for the Planning and Development Act 2007, chapter 7 (Development approvals).
Unit Titles (Management) Act
3.18 Unanimous resolutions
(1) For an owners corporation with more than 2 members, the requirements for passing a unanimous resolution at a general meeting are that—
(a) each person entitled to vote on the resolution—
(i) is present at the meeting; or
(ii) has given another person present at the meeting a proxy permitting the person to vote on the resolution; or
(iii) has cast an absentee vote on the resolution; and
(b) no votes are cast against the resolution; and
(c) at least 1 vote is cast in favour of the resolution.
(2) For an owners corporation with 1 or 2 members, the requirements for passing a unanimous resolution at a general meeting are that—
(a) no votes are cast against the resolution; and
(b) at least 1 vote is cast in favour of the resolution.
Note 1 An abstention for any unit does not in itself prevent a unanimous resolution from being passed, if at least 1 vote is cast in favour of the resolution.
Note 2 If the owners corporation has 2 members, both must be present to make up a quorum for consideration of the resolution (see s 3.12), unless either is not entitled to vote on the resolution (see s 3.20).
Clearly it is a significant process to ensure every owner registers a vote either For or Abstain, particularly with uninterested or non-resident owners, owners living overseas, mortgagees voting or owners with declining capacities. Just one Against vote causes the resolution to fail.
The process for getting the boundary changes registered is also multi-step and can involve significant effort and some cost against the 3 month clock set in the legislation.
This option could be structured to have the owners pay all the costs of registering the changes and the valuer’s report.
Class B with attached garages
A townhouse with an attached garage already has power use in the garage on the owner’s power bill, so the owners corporation does not have to agree a scheme.
Class B with common parking areas
There are a few Class B complexes with individually owned or common property parking spaces not attached to the houses. In these cases the owners corporation will need to agree a process along the lines outlined above to ensure that the additional use of power is defrayed by the users of it.
For technical information on the necessary electrical facilities go to Recommendations on Electric Vehicle Charging Facilities in New Strata Developments. A presentation Electric Vehicle Charging In Residential Strata from Wattblock NSW is also attached.