THERE ARE NO QUICK FIXES FOR VISITOR PARKING ISSUES
One of the most contentious issues in strata properties is the perennial problem of residents using visitor car parking spaces.
While the sight of a resident’s car continually occupying a visitor space contrary to the by-laws can cause tensions to rise, there is no quick fix to enforcing those by-laws.
Tempting as it may be, a body corporate cannot have a vehicle towed without first obtaining an order from the Office of the Commissioner for Body Corporate and Community Management.
And as a recent adjudication from the BCCM shows, that process takes time, patience and evidence.
In brief, an occupier of a lot was parking their vehicle in a visitor space on a regular basis, contravening the scheme’s parking by-laws.
But rather than immediately engage a contractor to tow the offending vehicle, the body corporate started a process that would take 18 months to secure the necessary approval to allow that action to take place should the resident offend again.
The lengthy process points to the importance of clear communication between a body corporate and a resident who it believes is contravening a by-law, as well as the need to keep a record of correspondence and a log of photographic evidence.
It’s worth looking at the timeline of activity it took to finally reach an adjudication from the BCCM:
- April 2021: the body corporate writes to the resident about the issue of parking in a visitor space. The matter is not resolved.
- June/July 2021: the body corporate issues a by-law contravention notice.
- July 2021: the body corporate passes a resolution, seeking an order from the BCCM, In order for the dispute to be resolved, we request that the occupier of lot 145 cease parking his vehicle/s unlawfully on the common property (i.e. not within the garage of the lot or on the driveway of the lot). If the occupier of lot 145 continues to park their vehicle/s unlawfully on the common property, we seek an order to allow the body corporate to tow their vehicle/s away.
- October 2021: the body corporate applies for conciliation. However, the conciliator “ended the conciliation because the respondent did not make a reasonable attempt to conciliate.”
- November 2021: the body corporate lodges an application with the BCCM, acting on the July 2021 resolution.
- January 2022: the body corporate issues a further by-law contravention notice.
- May 2022: the body corporate makes its submission to the BCCM. The Commissioner invites the respondent, the affected person and all owners to make a submission to the application. A dispute resolution recommendation is made, referring the file to department adjudication.
- September 2022: the adjudicator makes their ruling. In doing so, they note:
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- As with all its functions, a body corporate must act reasonably in making or not making decisions about the enforcement of its by-laws. The legislation sets out the process for pursuing an alleged by-law breach. I am satisfied from the submitted evidence that the body corporate has complied with the statutory process for enforcing the by-laws.
- Based on the submitted material, I am satisfied that the respondent has previously parked on common property in breach of By-law 5. Moreover, I consider it likely that conduct has continued. On that basis, I will make an order that the respondent must not park unlawfully on common property unless he has prior written approval from the body corporate to do so. Furthermore, I will declare that it would not be unreasonable for the body corporate to resolve to remove the respondent’s vehicle in future if it is parked in breach of the by-law.
- Of course, if the respondent has not continued to park on common property contrary to the by-law, these orders should be of no concern to him.
- Aside from the potential for his vehicle to be towed, the respondent should be aware that if he fails to comply with this order, the body corporate will be at liberty to take action in the Magistrates Court to enforce the orders and to seek a penalty for the relevant offence.
So, after 18 months the body corporate secured approval to have a vehicle towed without the need to come back for further adjudication. The BCCM adjudicator was at pains to point out the legal complexity of the process and the importance of seeking sound advice.
The problem of people parking in visitor spaces contrary to by-laws is unlikely to ever go away, but there are remedies available to a body corporate to seek a solution. However, it will require patience, a record of correspondence and proper evidence to back up the claims.
This article was contributed by Hynes Legal
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That is all very interesting, however, in our Units there are two blocks, one block all renters and the other owners and AB&Bs. On speaking to one of the renters who always parks their car in the visitor’s park.
I asked, “were you not advised not to park in the visitor’s car park, you must park in your allotted park down in the car park.” His reply was “If I had a car park down in the car park I would most certainly park there, I do not have a car space, I rent without a car park, and NO I did not get that message that I was not to park in the visitors park.”
My question do the by-laws apply to RENTERS?
This is an absolute joke and that is an understatement.
One cannot blame owners to take the law into their own hands to remove the car.
It will be up to the owner of the offending vehicle to claim the towing fees through the courts and that will take time.
When I was the Chair of a Body Corporate Committee a few years ago I had a few cars towed and was never taken to court for that.
The real joke is that it takes far too long to obtain an Adjudicator’s or Referee’s ruling. It is time that the BCCM Office had sufficient funding to enable a speeding up of the process . We live in an age whereby an ever increasing percentage of the population live in apartments and other community based residences and that means an ever increasing number of applications for rulings from the BCCM Office.
It’s a bigger issue for the individual Body Corporates when Council audits the property as a resident complains to Council of resident parking in visitor car parking spaces.
Council the. Audits the property and finds that residents are using the visitor car parking spaces contrary to the Development Application approval and then slaps the Body Corporate with a $3,300 fine.
This issue is a “Rock and a hard place” for some Body Corps!
I agree with Letje that th whole process is a joke and the length of time taken by the Adjudicator on a simple matter is absurd. I also agree with the view that the Body Corporate should have it towed and let the resident go to the effort and trouble, and cost, to pursue the matter through the courts. With all our current bureaucratic processes, that will take a year or two to resolve also.
I understand the complexities of removing owners or renter scare but we live next to a construction site where we consistently have construction workers and others visiting neighboring units and parking in our visitor car parks – what are our legal rights to have these vehicles removed / towed?