Commissioners Corner: Towing Orders
Commissioners Corner: Towing Orders
The issue of vehicle towing, including if, when and how the body corporate can tow an “illegally” parked vehicle, has been raised at a number of public information seminars presented by my Office.
There are no simple answers to these types of questions. Each situation is different and it depends on the facts to hand, including what–if any–by-laws about parking and towing are applicable.
In this article, I will provide an overview of some adjudicators’ orders about towing as a way of providing guidance about this sometimes vexed issue, by presenting some of the adjudicators’ statements of their reasons.
I stress that orders are made specific to a scheme and the facts of a dispute. It is up to bodies corporate and owners to consider the orders and how applicable they may be to their own circumstances. All adjudicators’ orders are published at www.austlii.edu.au, with the ability to search by keywords.
In Mt Gravatt Business Centre [2017] QBCCMCmr 315 (26 June 2017), the adjudicator stated:
“It has been noted in previous adjudications that a body corporate may have common law rights to have a vehicle towed which is separate from the body corporate’s rights to enforce the by-law. This may include the right to action an interference with the enjoyment of land as a common law nuisance. Any action to have vehicles towed based on common law rights rather than because of a by-law contravention would be outside the jurisdiction of an adjudicator because it would not relate to the enforcement of rights under the Act or the CMS. A body corporate might wish to seek legal advice about the implications of exercising common law rights to tow a vehicle.”
In Aztec on Joyce [2013] QBCCMCmr 28 (29 January 2013), the adjudicator stated:
“If the body corporate were to seek to rely on common law rights to tow a vehicle it would be prudent for the committee to obtain independent legal advice on those rights. The committee would then be able to arrange for towing in a manner compliant with those rights. In arranging for towing the committee should still be aware that the decision making of the committee must still comply with the [Act’s] procedures. For example, even if the towing was lawful, the decision by the committee to enter into a contract with a tow truck company would be contrary to the [Act] if the committee chose to do this unreasonably or without following proper meeting procedures. This is because, regardless of the subject matter of a committee decision, the committee must follow [the Act’s] procedures in making the decision and must act reasonably in coming to the decision.”
The adjudicator also stated:
“I have no jurisdiction to determine whether or not it would be lawful for the committee to have the vehicle towed based on any common law rights. However, provided the committee has first made a reasonable effort to warn the respondent that his car is causing an obstruction and will be towed then a decision by the committee to arrange for towing would not be unreasonable under the [Act]. I am prepared to make a declaration to that effect.”
In Fernbrook [2015] QBCCMCmr 330 (14 July 2015) the adjudicator stated:
“I will make orders that effectively ensures that the owner and occupiers of lot 62 must cease to park any vehicles in the visitors parking spaces and that failure by the occupants of lot 62 to cease to park vehicles in visitor parking, will permit the body corporate from resolving to have the offending vehicles removed from the common property and to seek the costs of removal from the owners of the offending vehicles.”
I would also point out that within these orders, there are references to other orders about parking and towing, which of themselves may be of relevance.
So, then, what are some of the key take-outs from these orders? I’d suggest they might include the following:
• It is unwise for a body corporate to assume its by-laws provide for parking and towing without having first checked that such by-laws are properly registered.
• It is equally ill-advised, if not more so, for a body corporate to undertake or even consider undertaking towing without having first informed itself about its potential liability arising out of towing–that is, by seeking legal advice.
• On the flipside of the equation, it is not a good idea for owners and occupiers to assume they can park ‘anywhere’ or that there will not be consequences if they continue to park in contravention of by-laws.
• The body corporate must undertake a proper decision-making process, including acting reasonably, if it is considering towing a vehicle.
• Part of acting reasonably might include giving some kind of notice of warning for when it is intended to tow a vehicle.
Putting these points to one side, it needs to be remembered that towing is just one option of several available to a body corporate in addressing a parking problem and, as such, does not need to be the only option a body corporate ever considers.
At the risk of repeating myself from other articles and statements I’ve made in seminars and presentations, it should not be assumed that all owners and occupiers–let alone visitors–know what the by-laws are about parking and towing.
A body corporate facing issues about parking should be asking itself, have we done enough to ensure the by-laws are widely known? Are we making clear what our by-laws say about where someone can park and when? If we are considering towing, are we giving sufficient notice about that? Do we need to consider our signage and our communication to owners and occupiers (and visitors, if possible)?
While neither I nor my Office can provide advice about parking or towing or comment on the appropriateness or validity of a by-law, the information in this article might at least provide some prompts for bodies corporate on what they need to think about.
For further, general body corporate information please contact my Office on 1800 060 119 or visit www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Office of the Commissioner for Body Corporate and Community Management.
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There is a need to clarify body corporate rights as between itself and outsiders ( non unit owners). Much of the literature and case law is concerns inter body corporate disputes. It seems like three is a lot of emphasis on reasonableness as between the body corporate and lot owners. However where the parking dispute is between the body corporate and ‘outsiders’ then we might question why the ‘reasonableness’ requirement applies to the body corporate more than to any property owner.
Indeed, for the body corporate to permit outsiders to park on body corporate land may require a resolution to be passed without dissent ( s 169(1)(b) of the BCCM Act)
Thank you for your comments Peter.
Thankyou Commissioner for a great article on a (currently) vexed question.
We all hope that the current legislative review gives some relief on the towing front.
For readers that resonate with this article… we are currently looking for a community titles scheme having car parking problems.
Particularly, a scheme which is fairly new (not more than 8 years old) and where owners are taking up visitors’ car parking spaces on a regular basis.
(…and where there is good proof of this!).
We have a potential solution that we are looking to examine the feasibility of, in the context of a real community title scheme.
If you are interested, please give me a call or drop me an email.
Thank you for your comments and compliments Micheal.
The commissioner appears to be focusing on lot owners or their visitors improper use of visitor car parking.
Where does a Body Corporate stand where people who fit neither category, i.e. the general public who choose to ignore the ample signage advising otherwise and use a visitor parking space whilst they go elsewhere?
Thank you for your comment and query David. I am only able to speak about things in a body corporate context and as they relate to the jurisdiction of my Office, hence the focus on bodies corporate and occupiers. Your query is similar to another one earlier. It may be useful to consider the reference to “common law rights” in the adjudicators’ orders cited in the article, as a guide for how bodies corporate could deal with people who are not occupiers.
Occupiers are allocated spaces according to the format plan on the title.
There are common property spaces allocated for visitors. However, over time from day one, occupiers have been allowed to park in visitor spaces. The more the visitor allocations, the less the demand for them and the less the impact.. Strange that.
Is it reasonable for a ‘new’ committee to crack down on current use of visitor parking given the history? One would argue not. I am not referring to the recalcitrant habitual parking infringer.
The parking situation often arises when a new one or two on the committee find their visitors cant find a space and then decide to enforce a by law where no occupier is allowed to park. . And after only a single affecting incident.
Being on a committee gives a certain power, does it not ?. Especially, after reading through the by laws and finding the previous committee did not give a fig for enforcing this parking by law. A bad situation that, that needs to be fixed immediately by me-me-me. However, in the eyes of other occupiers (particularly renters and their investor payees), this change appears a ridiculous situation given the history of non enforcement and appearance of a lot of free spaces available; mostly empty during the day..
Enforcing an all or nothing approach is not fair and reasonable or even common sense.
This situation is more controllable where only a few spaces are available for visitor parking, as one would expect.
Only residents appear affected and annoyed by all of this and they let themselves be so.
Obviously a community approach needs to be taken.
Huh?
Adjudicators need to take cognizance of the idea of community living where the car is important. We now see narrow streets where cars, yellow lines and wheely bins being confrontational.
A fair minded balance between real visitor space requirements and the total number of such spaces on the plan is required. Appearances are everything.
This need to take a legal stance on a perceived parking situation in larger schemes appears driven by the intolerant and one eyed.
Thank you for your comments