Car parking and owners’ rights to their allocated space is a common area of dispute that body corporate committees have to deal with. The entitlement of car park rights escalates when a sale is proceeding and the lines somebody has drawn on the ground usually with good intentions don’t match the plans.
With parking also being a premium in strata properties, a common trend is to reconfigure, reallocate or rearrange car parking in a scheme to either generate more spaces, solve access issues or to satisfy induvial owner’s requests.
This article sets out some of the important matters a committee must consider before proposing and approving changes to any car parking arrangements.
Our previous article on development offences discussed issues that a body corporate needs to be aware of if a development approval is contravened.
Councils for each region will impose different requirements on the developer to have a minimum number of car parks for occupiers and a minimum number of car parks reserved for visitors. Depending on the development approval, it may set out where car parks must be located, manoeuvring areas and the size of the car parks. These requirements placed on the developer pass on to the body corporate.
Accordingly, before any plans to change the existing car parking configuration are implemented, you must make sure the changes are consistent with the conditions of the development approval which can be obtained from the council.
Body Corporate Considerations
Once any council issues are satisfied, the type of body corporate approval required will depend on what changes are being made. This could extend to:
- Swapping existing car parks between owners;
- Swapping existing car parks between an owner and visitor areas; or
- Granting new car parks to owners.
Owner to Owner Swap
An owner to owner swap is fairly straightforward if the car parks are exclusive use allocations. This change would ordinarily require the affected owners to agree and the change being reflected in a new community management statement.
If the car parks are on the title then it is a much more complicated process and requires the car park to be subdivided from one lot, transferred to the new owner, amalgamated into another lot and the changes being reflected in a new community management statement. More details on this scenario can be read here.
Owner to Visitor Swap
Assuming the car park is an exclusive use allocation, an owner to visitor swap will require:
- The owner’s consent to relinquish the exclusive use allocation and resolution without dissent for the body corporate to accept responsibility over the area;
- The granting of a new exclusive use allocation over the previous visitor car park, which also requires a resolution without dissent; and
- A new exclusive use plan to mark the previous visitor car park as an exclusive use area; and
- A new community management statement to be prepared.
New Car Parks
Adding new car parks is the change most likely to cause council some concern (especially where the car park was previously a visitor car park and is not being replaced elsewhere in the scheme).
Assuming the car park is an exclusive use allocation, this will require:
- The granting of a new exclusive use allocation over the common property, which requires a resolution without dissent to approve the new community management statement; and
- A new exclusive use plan to mark the new exclusive use area.
A less permanent option (that does not require a resolution without dissent if less than 10 years for the Accommodation Module or 3 years for the Standard Module) is to lease or licence the car park.
This approach can be an attractive option to bodies corporate as adding car parks can be something of value which can be “sold” or “rented” if managed correctly. In doing so the body corporate needs to ensure that it is not conducting a business, meets any council requirements and acts reasonably in the way in which owners are provided with the opportunity to “buy” the car park. We will write further about the sale of common property and exclusive use areas in our next instalment.
Car park changes often require works to be carried out to the scheme. For example, this can include:
- Repainting lines;
- Painting new numbering;
- Installing signage; or
- Converting common property (for example, a garden area) to concrete parking.
Accordingly, any of these changes also need to be properly approved, which we wrote about in this article.
This article was contributed by Todd Garsden – Partner, Mahoneys Lawyers