Special privileges
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The content - including publications - on this website is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. We attempt to ensure that the content is current but we do not guarantee its currency or accuracy. We are not lawyers and any communications between the OCN and its members do not constitute legal advice and must not be relied on as legal advice. You should seek legal or other professional tailored advice to your circumstances. You should seek legal advice before acting or relying on any of the content in this website and any communications from the OCN. OCN will not be liable to you or anyone else for any loss suffered in connection with the use of this website or any of the content.
Special Privileges used to be granted to a unit through the OC passing an unopposed resolution at a general meeting. With the passage of time and changes of ownership and managers, the continuing existence of Special Privileges was often lost, except to exceptionally diligent conveyancers. So in the amendments that came into effect on 1 November 2020, Special Privileges were significantly amended.
First, unless an owners corporation preserved existing Special Privileges as a Rule, they terminated on 1 July 2021.
167 Special privileges relating to common property
(1) This section applies if, under section 22 as in force immediately before the commencement day, the owners corporation—
(a) granted a special privilege for the enjoyment of the common property, or any part of the common property, to—
(i) a unit owner; or
(ii) someone else with an interest in a unit; and
(b) the special privilege has not been terminated on or after the commencement day.
(2) A special privilege to which subsection (1) applies—
(a) is taken to have been validly granted; and
(b) continues in effect according to the terms on which the grant of the special privilege was made; and
(c) 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; and
(d) unless terminated earlier under paragraph (c)—terminates on 1 July 2021.
This seems a little harsh, but if no one knew or cared about Special Privileges that had already been granted, terminating them by legislation was probably the simplest remedy. If an OC discovers the mistake, it can remedy it under S112A (see below).
Special Privileges have now been split into short term ones of less than 3 months granted by special resolution and long term ones that are now created as a registered Rule.
S22 now only deals with short term Special Privileges granted by a special resolution.
22 Special privileges relating to common property
(1) An owners corporation for a units plan may, if authorised by a special resolution, grant a special privilege for a period of less than 3 months to—
(a) a unit owner; or
(b) someone else with an interest in a unit.
Example
a right to the exclusive use of a pool area for a private party
Note A special privilege that is granted for a period of 3 months or more must be granted by a special privilege rule (see s 112A).
(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.
(3) The owners corporation may only grant a special privilege under this section—
(a) with the consent of the grantee of the special privilege; and
(b) subject to a condition that states that the maintenance requirement is the responsibility of 1 of the following:(i) the owners corporation;
(ii) the grantee.
(4) A condition 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 to the extent the rule places this obligation on the grantee.
(5) A grantee must not unreasonably withhold consent mentioned in subsection (3) (a).
An OC could pass a special resolution regarding the granting of Special Privileges of less than 3 months for a particular circumstance like holding a wedding in the pool enclosure or placement of skips during renovations. That resolution could cover cleaning, repairs and so on.
S112A grants the usual long term Special Privilege.
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.
So, the OC grants an owner an exclusive or near exclusive right to use a specified area of the common property, specifies who maintains the area, to what standard, for a stated period or as an ongoing right and registers that as a Rule.
Hence any owner, resident or purchaser is aware of the Special Privilege.
The Special Privilege can be revoked by a special (75% of a quorum) resolution, even if the person or unit granted the Special Privilege refuses consent to the revocation unreasonably or the period for which the Special Privilege was granted expires.
112B Amendment or revocation of special privilege rule
(1) A special privilege rule may only be amended or revoked—
(a) by special resolution of the owners corporation; and
(b) with the consent of the grantee.
Note A rule granting a special privilege may also be made for a specific period and expire according to its terms (see s 112A (4)).
(2) However, the grantee’s consent must not be unreasonably withheld.