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Towing Vehicles (QLD)

One of the common matters causing disputes in Bodies Corporate is the regulation of car parking upon common property and the power (or in some instances lack thereof) of the Body Corporate to arrange for the towing of vehicles from common property. It is important to note that one size does not fit all when it comes to regulating parking within Bodies Corporate. Each Scheme has its own plan, by-laws and development conditions, (imposed by the Local Authority) which will have a considerable impact on the rights and responsibilities of the Body Corporate, Lot Owners, Occupiers and Visitors on the Scheme land.

Before considering the specific issues relevant to Body Corporate parking issues, it might be useful to consider the analogy of unauthorised car parking in relation to non-strata residential properties. Generally, the parking of vehicles on or around the driveway or nature strip of a non-strata residential property will be governed by:

  1. The Local Laws as enforced by the relevant Council under the applicable planning scheme; and
  2. The general law in relation to trespass and nuisance.

For the sake of simplicity, where vehicles are parked contrary to the relevant Local Laws on parts of driveways or nature strips which do not form part of the lot, the Council may arrange for the towing of such vehicles at the owner’s expense. Where a vehicle is parked on part of the lot, the owner or occupant may exercise a right to self remedy for trespass or nuisance by having the vehicle towed at the vehicle owner’s expense. The rights in relation to towing vehicles become increasingly more complex in circumstances where there are multiple owners or occupants of dwellings. For instance, a landlord would have significant difficulty in attempting to tow a tenant’s vehicle or a vehicle belonging to a visitor of their tenant and the same difficulty would apply as between co-owners and a property.

This is similar to the difficulty posed by Bodies Corporate in respect of common property, as each of the Lot Owners owns the common property as tenants in common, each Lot Owner has proprietary rights in relation to the common property, subject to the regulation of common property under any valid and enforceable by-laws. Further to this, it is important to note that visitors on Scheme land are not bound by the by-laws for the Scheme.

Additionally, the original development conditions, upon which the establishment of the scheme was approved by the Local Council, contains certain requirements in respect of parking spaces generally and visitor car parking spaces specifically. The development conditions run with the land, which means that they bind the Body Corporate. Accordingly, any action taken by the Body Corporate which breaches the development conditions will constitute a development offence, leaving the Body Corporate potentially liable to prosecution by the Local Council. For this reason, any by-law or motions which seek to change the regulation of car parking on common property should be carefully considered in light of the original development approval.

What this means for Bodies Corporate, is that there is a very specific set of circumstances in relation to each Scheme which must be considered on its individual merits when decisions are being made in relation to car parking issues. Further to this, it is important to note that adjudication decisions in the Commissioner’s office, whilst somewhat instructive and helpful, do not create binding precedent and therefore cannot be relied upon by Bodies Corporate as being an iron clad guarantee of the outcome of a similar dispute which they may be experiencing.

Some of the specific issues, aside from the developing conditions, which will be relevant include:

  1. Whether or not the parking spaces form part of the Lot Owner’s title to the Lot;
  2. Whether the car parking spaces are subject to an exclusive use allocation and exclusive use by-law; and
  3. The terms of any particular by-laws for the Scheme in relation to parking and/or other related matters such as the obstruction of common property, nuisance etc.

By reason of the matters discussed above, under the present legislative regime, there is no certainty for Bodies Corporate as to their rights to:

  1. Tow vehicles from common property; and/or
  2. Pass on the towing expenses to the owner of the offending vehicle.

It is highly advisable that legal advice be sought prior to taking any action to physically remove a vehicle from the common property and it is particularly important to consider that the Body Corporate could be potentially liable for damage caused to vehicles in the process of removing them from the common property.

From the case law in this area, it appears that the most prudent course of action to minimize the potential liability of the Body Corporate would be to seek orders for the Body Corporate to be authorised to arrange for the towing of any offending vehicles and for the recovery of the costs of such towing from the owner of the vehicle. Without such an order, there is some considerable risk on behalf of the Body Corporate that it may be open to liability for its actions.

Finally, this is an issue which is being considered as part of the legislative review of the Body Corporate and Community Management Act. Anyone who has a view in relation to this matter which they would like to express should consider making a submission. The link to the current options paper is below for ease of reference.

This article was contributed by James Nickless from ClarkeKann Lawyers.




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  1. Douglas Jones

    Greetings, James – thank you for this useful information.
    From whom does a body corporate seek orders?
    We had 12 unallocated parking bays in our building and offered to lease them to apartment owners at reasonable rental. Suddenly, the 35 vehicles that had occupied those bays from time to time went elsewhere. While we have now managed to lease most of them, there is an ongoing problem with late payment from some lessees and it would be good to legally remove the offending vehicles.