Electric Cars and the introduction of differential levies
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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 charging cars. 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.
The processes for charging for power used to be reasonably complex. As a result of the amendment to the Unit Titles (Management) Act that came into effect in November 2020, an OC can agree to charge differential levies which greatly simplifies the process of introducing a ‘user pays’ system. The OC can adopt a Rule under Section 78 of the UT(M)A to require those charging electric cars to pay for extra for the power they are using.
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 by special resolution.
(3) A resolution under subsection (2) (b)—
(a) must be fair, taking into account—
(i) the structure of the unit plan; and
(ii) the nature of the buildings that are part of the units or common property of the unit plan, including the features and character of the units and common property; and
(iii) the purposes for which units are used, including the likely impact of that use on the common property; and
(iv) the extent to which the change imposes a burden on a unit that is commensurate with the use of that unit; and (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 amended or revoked by—
(a) a special resolution; or
(b) an order of the ACAT.
Note 1 A unit owner may apply to the ACAT for review of a special resolution under subsection (2) (b) about a method for working out general fund contributions (see s 127).
Note 2 A special resolution is taken to be an amendment to the rules of the owners corporation (see s 108 (5)).
The issues then become working out how to quantify power being used to charge electric cars as opposed to other uses of common property power and a reasonable and fair method for passing the cost of that power on to those owners using electric cars.
The agreed arrangements have to allow the power being used by occupiers of a unit to be passed on to the non-resident owners.
The issue then is how, where and what sort of charging facilities OCs are going to provide.
Class A basement car parking
The usual Class A model is basement parking with each unit assigned one or two parking spaces. So the following options could be appropriate.
1. Owners are responsible for themselves and each has to install an individual meter probably on common property.
The architecture of an OC may make this option unworkable.
A grant 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 the creation of a Rule by a vote with no more than ¼ of the votes being cast against.
112A Grant of special privileges in relation to common property
(1) The owners corporation may, by special resolution, make a rule granting a special privilege for a period of 3 months or more (a special privilege rule) to—
(a) a unit owner; or
(b) someone else with an interest in a unit in the units plan.
(2) A special privilege rule must—
(a) only be made with the grantee’s written consent; and
(b) must include a provision that states the maintenance requirement is the responsibility of 1 of the following:
(i) the owners corporation;
(ii) the grantee.
(3) A special privilege rule that states that the maintenance requirement is the responsibility of the grantee—
(a) must state the type and frequency of maintenance the grantee must undertake; and
(b) relieves the owners corporation of its obligations under section 24 (Maintenance obligations) to the extent the rule places this obligation on the grantee.
(4) A special privilege rule may be made to have effect for a specific period.
(5) A grantee must not unreasonably withhold consent mentioned in subsection (2).
(6) A special privilege rule that is registered is taken to have been validly made after a period of 2 years from the day the rule was made, or purportedly made, despite any defect or irregularity in relation to making the rule.
Note An amendment to the rules of the body corporate must be registered with the registrar-general under the Land Titles (Unit Titles) Act 1970, s 27.
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. Technical advances are already overtaking this problem with QR code login to automatic billing systems obviating the need for a physical meter.
2. A contiguous group of parking spaces is designated as 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 to have 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. And it makes it easier at ACAT to argue that voting No to a differential levy is unreasonable.
3. 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. Technical advances will resolves these sorts of issues.
Unit Titles Act
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
(b) either—
(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 lodgement 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 wanting the electric car charging area 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 be involved at all in the owners choice of car nor agree any policy or scheme for car charging.
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.
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