The Law Handbook 2024

596 Section 6: Houses, communities and the road • regarding payment of fees by instalments by lot owners in financial difficulty; or • regulating and prohibiting the drifting of tobacco smoke from a lot in a multi-level development. Rules registered by an unlimited owners corporation are binding on the limited owners corporation. An obligation to pay legal costs or fines goes beyond the scope of these provisions. Rules that prohibit short-term letting are also beyond the scope of these provisions and are invalid. Only planning schemes can control the use of lots. However, if an owners corporation incurs additional costs arising from the particular use of a lot by the lot owner, it may levy additional annual fees on that lot owner. For example, an increased insurance premium due to the risk associated with short-term residential accommodation. If the owners corporation does not make any rules or revokes all of its rules, then the model rules under schedule 2 of the OC Regulations apply to it (s 139(2)). Current rules that are registered remain viable, provided they are consistent with the OC Act. Rules must not unfairly discriminate against a lot owner (s 140(a)), they bind owners and occupiers (s 141), they must be registered to have effect (s 142) and they must be given to owners (s 143). If the model rules provide for a matter and the rules of the owners corporation do not, the model rules relating to that matter are deemed to be included in the rules of the owners corporation. A significant model rule provides that an owner or occupier of a lot must obtain the written approval of the owners corporation before making any change to the external appearance of their lot. Approval cannot be unreasonably withheld but approval may be given with reasonable conditions (r 5.2). Record-keeping The OC Act prescribes which records an owners corporationmust keep (s 144) andhow long the records must be kept for (s 145). However, the OC Act does not mention important records (including guarantees from builders, manufacturers and contractors, etc.) and other records that should be kept for life (e.g. architectural plans). Warranties must be recorded in the minutes of the first meeting (s 67A). Beyond section 144 of the OC Act, the OC Regulations (reg 11A) list additional records that must be kept. These include telephone numbers and email addresses of each lot owner, records of any homicides that have occurred on common property, the dates of particular checks (e.g. gas safety checks, electrical safety checks, and pool barrier compliance checks) and records relating to any building defects or safety concerns associated with common property. Records are available for inspection on request by a lot owner, mortgagee or buyer at no charge; however, a reasonable fee may be charged for a copy (s 146). The OC Regulations prescribe maximum fees for a copy of any record. It is reasonable to assume a ‘buyer’ is a buyer under contract and not a prospective buyer, as this term is used elsewhere in the OC Act. It follows that privacy laws cannot be used as a reason to refuse an owner or buyer access to these records, including the register of owners. A lot owner must not authorise a representative who is not a lot owner to request a copy of the register or any part of the register for a commercial purpose without the prior consent of the owners corporation. The owners corporation must maintain details of contracts, leases, licences and other particulars in a register prescribed under sections 147 and 148. The register may be kept in an electronic or written form; care must be taken to exclude private information. The OC Act does not define the term ‘correspondence’. In an unreported VCAT decision, the records of the owners corporation were taken to include all correspondence (including emails) between the manager and members of the owners corporation (including the committee), between the manager and non-members of theowners corporation (thirdparties), between the committee and members of the owners corporation (lot owners), and between the committee and non-members of the owners corporation. The records of an owners corporation do not include correspondence between committee members, between lot owners, between individual committee members and other lot owners, or correspondence protected by legal professional privilege (see ‘Legal professional privilege’, below). Owners corporation certificates Any person may apply for an owners corporation certificate under section 151 of the OC Act. The certificate includes a copy of the rules (including the model rules), advice and information to prospective purchasers found in schedule 3 of the OC Regulations, all resolutions made at the last annual