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I own an apartment in a luxury high-rise in the Parramatta CBD. My apartment came with car spaces that consisted of 2 adjacent “disabled” (extra wide) spaces. This capacity was pivotal in choosing the apartment I purchased over a similar apartment. Some months ago the OC decided to remove the disabled signage as it was no longer required. The spaces are on title to my apartment and are delineated by painted lines. Adjoining the spaces on one side is a storage cage that is also on title to my apartment. There is no right of access over the spaces and no other common property adjacent, other than walls. We own 2 cars. There is no visitor parking in the building and virtually none in the surrounding streets. When we have visitors we park 3 cars in our space as they fit comfortably without encroaching on any other space or on common property. The OC in our building can be very “active” about the parking area and have pursued owners who park boats or trailers or anything but cars or motor bikes in their spaces. Are we entitled to use our space for 3 cars? What issues are in play here?
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@mattb said:
… Additionally, if the car parking is underground, the BCA then requires that the car park be adequately ventilated: that one extra car could infact cause significants costs if mechanical ventilation needs to be upgraded or installed. (The BCA also uses a formula to dictate what is needed). There is also the impact to your buildings’ insurance and even fire certificate. For your OC to consider your request to ratify a misuse of parking, they need to cover themselves and that involves council searches and consultants(BCA and fire), none of which is free: irrespective of a financial offer, if they reject (either because they want to or have to) then the OC is still out of pocket merely by engaging council/consultants and the like…Hi mattb, we have less than 40 cars in our parking area so i think there is no contravention of BCA code F4.11 as it currently stands – that provision specifies mechanical ventilation (which we already have) when there are more than 40 cars involved. If i park 3, and everyone else uses their carspace to capacity, there will be 25 vehicles.
Can you point me to a link where i can find the formula you mention? thanks
Lastly, your comment about ‘wanting’ to reject the financial offer – as distinct from ‘having to’ – does the former not come within ‘unreasonable’ behaviour as defined by s158 of the SSMA? if council, bca, fire, insurance et. al. pose no impediment, and the OC still refuses, is this not ‘unreasonable’ behaviour.
@scotlandx said:
… Setting that aside I am not sure that the EC would have the power to resolve to grant you that permission, because effectively you are asking to be granted exclusive use of a part of the common property, and that is a matter for the OC to consider at a general meeting…Hi scotlandx, i acted on the basis of his link on the fair trading website, under the question ‘I want to park in a section of the driveway that’s common property. Can I get permission to do this?‘:
The link says:
I want to park in a section of the driveway that’s common property. Can I get permission to do this?
Send a written request to the secretary or strata managing agent. Permission should then be voted on at a general or executive committee meeting.Do you think the website is incorrect?
If a person is requesting exclusive use of common property, which would require an exclusive use by-law, yes, the information given on the DOFT website is incorrect. An exclusive use by-law requires a special resolution at a general meeting.
The DOFT gives ok general advice, its website is useful, but you shouldn’t rely on general advice given on that website when applying it to specific circumstances. Also in my own experience advice given by staff there is sometimes wrong.
I don’t believe the advise is wrong. The EC can grant permission for residents to park on the common property by just a simple majourity. The default bylaws state as much. The resident would not have exclusive use of the area just be able to use it, and permission could be removed at any time by another simple majourity vote. If the EC is enforceing the bylaws this would be sufficient.
You would be correct scotlandx IF the resident wanted exclusive use but if the resident just wanted somewhere to park just a simple vote is sufficient.
Exclusive use would be for ever and not eaisly removed and would pass on to future owners of said lot which might not require it. It would also increase the value of this lot and reduce the amount of common property which might be a bad thing.
Hi Kiwipaul, in NSW, your advice that the EC can simply sanction permanent use of common property via a majority vote doesn’t hold. Scotlandx’s advice is correct in that a vote has to be taken by the OC at an AGM/EGM and a special bylaw would need to be drafted to determine lot entitlements and responsibilities for that piece of common property. (I’m not sure how it works in QLD).
Mikey_z4, the BCA has to be purchased, so there is no link per se (a google search of ‘mechanical ventillation in car parks’ will turn up some lifted quotes from previous years’ BCA papers used in test cases and/or superceded BCA clauses such as BCA code F4.11) however having recently been through an upgrade to our own car park, the formulae deal with car park elements in various stages (not simply the number of car allotments) by determining whether the space is entirely naturally ventilated, partially or wholly enclosed, underground, number of anticipated car movements per hour at peak loads, number of cars, the volume of the space and so on.
As to whether the EC/OC rejects your request simply because they want to (or it doesn’t suit the OC) is not actually ‘unreasonable’. Unreasonable in your eyes perhaps, but to be specific the test of ‘reasonableness’ is done on the balance of parties and outcomes, not just one concern.
Having consideration for what is at stake – your request to achieve private benefit over common property – the law states that the OC is responsible for maintaining all common property and essentially ensuring that nothing impedes insurance and other statutory requirements from being met…nothing else; so the ‘reasonable’ test is actually not to annexe common property from the use of all for the exclusive use of one, given the potential knock-on effects.
I hope that this makes sense: honestly, if I were you, I would simply look around your car park to see if any owners do not consistently have a car in their car space (there’s always some in every scheme – especially in the city) and then approach that owner with an offer to lease it from them. You will be achieving exactly the same outcome with far less angst for all concerned.
mattb said
… so the ‘reasonable’ test is actually not to annexe common property from the use of all for the exclusive use of one, given the potential knock-on effects……I hope that this makes sense: honestly, if I were you, I would simply look around your car park to see if any owners do not consistently have a car in their car space (there’s always some in every scheme – especially in the city) and then approach that owner with an offer to lease it from them. You will be achieving exactly the same outcome with far less angst for all concerned…
Hi Mattb, thanks for the reply
Regarding knock-on effects specific to my case:
Building Insurance Cover – OC has investigated with insurer themselves 10 months ago and came back with no change in risk or cover. This resulted in their own lawyer stating in a submission to CTTT (in the context that i contravened standard by-law 2) that there was ‘no increased risk, harm or injury’ caused by my parking.
Fire Risk – the 3 parked cars are not adjacent and do not obstruct fire exits, fire hydrants or sprinklers. There are sprinklers scattered all over the parking area but strangely my space seems to have missed out.
Ventilation – 1 of the 3 parked cars is vintage and on NSW historic registration plates, which means it gets driven less than 12 times a year (sometimes less). The OC can get ventilation consultants in but its going to be apparent to any objective person (ie CTTT) that emissions and movements from this third car will have minimal impact on the ventilation of the parking area. Another of the 3 three vehicles will turn vintage shortly (ie be more than 30 years) and I also intend to put this car onto historic plates. The reality is that of these three cars, only one is being used as commuter transport, and really only on the weekend. Emissions and traffic generated by these three cars is minimal and everyone in the block knows this.
OHS – A consultant engaged by the OC came in to assess the whole building (while my 3 cars were parked there) and ended up drawing a whole lot of yellow lines all over the pillars and steps in the parking area. Funny they said zilch about the three cars, to the OC’s consternation. Apparently it posed no risk to other residents in their opinion.
Lastly, i have asked all owners with spare carspaces (and there are quite a few) and only one has semi-agreed to offer a carspace (i say semi-agreed, because so far she still hasnt been able to tell me a rental price or term, despite me asking her twice).
But i see her hesitation – her space is narrower (!) than the space my third car is currently in (but of course, longer – so there is no encroachment onto common property), and i dont see how if i park in her space we will both be able to open our doors without denting each others cars. But yes, she was kind enough to suggest an offer…
MattB I accept I was party wrong but here is the default bylaw for NSW
2. Vehicles
An owner or occupier must not park or stand a vehicle on common property without the written permission of the owners corporation. That permission can be cancelled. Permission does not give an owner or occupier a permanent right over that part of common property.
So the OC (in QLD the EC can grant this permission also) can grant permission for residents to use the common property without the requirement of a SR or a bylaw.
I would suggest the resident who wants to take advantage of this is charged a comercial fee to prevent others doing the same thing. Granting permission to park without a good reason or a fee would enable all residents to park outside on the common areas otherwise they could claim discrimination if only certain resident were given this permission for free (owner occupiers being given permission but tennants denied).
In fact reading the standard bylaws most refer to without the written permission of the owners corporation and as the EC is the representive of the OC I feel they might have the authority to grant this permission anyway.