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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…
@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?
@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.
Hi scotlandx – thanks for the comment
– there is an EGM coming up in a few days and I’ve asked for a by-law for exclusive use of common property to be voted on – the by-law also includes a proviso that my parking encroachment causes no increased risk, obstruction, harm or interference to other lot users, and provides for payment of a market value rental if the body corporate deems this appropriate.I hope that asking the body corporate to vote on a by-law will be less ambiguous than simply seeking written permission from them. Afterall, if i contravene my own by-law, i am now accountable to the CTTT.
Hi mattb and Whale, thanks again for your comments – they are valued and do shed more perspective on the whole matter for me. 🙂
Hi mattb, if the OC chooses not to enter into dialogue, does this not partially constitute ”unreasonable” behaviour on their behalf within s158? Surely an OC has the obligation (fiduciary duty?) to respond to all written requests made to them in good faith, and not use as their first response engagement of legal representation.
Hi Whale, I do not claim to be without blame in the whole matter. I could have handled things alot better …
Nevertheless, I still insist that my request for written permission to park on common property and the offer to pay for the encroachment both have not been discussed at past meetings.
I was stopped mid-sentence by one member of the EC in a meeting when I started to say “would you consider granting me written permission if i paid a rental …” I could have chosen to persist and call for a vote there and then, but it was only an ECM, and the atmosphere was getting hostile and I risked being called worse names than The Fuhrer.
Could the strata manager have intervened and called for vote then? He chose silence. I don’t blame him – he knows on which side his bread is buttered.
And the rest of the participants at the meeting were pretty much quiet (the lady next to me kept looking at her feet) because they all knew a verbal explosion was about to occur from this particular EC member if I pushed any further. They’d seen it before.
There are no meeting minutes in existence making specific reference to any vote concerning the request for written permission or offer to pay rent. There are however minutes showing votes to issue a notice to comply, engage legal representation etc.
This does not constitute a ‘proper discussion’ on exclusive use of the common property because written permission and rental were specifically excluded from discussion by a member of the EC.
I’ve now had three (3!) lot owners express surprise (and particularly and ironically from the lot owner who without foundation alleges I am reducing her access to her carspace, and has been present at all meetings) that I am willing to pay not only rent but have it retrospectively applied to date of first encroachment. Go figure!
Hi Whale – I did not reply to kiwipaul because I thought his questions were directed towards Lyn Thorpe – she is the one with the two disabled spaces
However, I will respond to your comment about the body corporate I’m part of who are allegedly so “upset” they won’t consider “(my) overtures about exclusive use, payment, or anything else.”
I will assume you are not part of my body corporate. 12 months ago, I did write to the strata manager requesting written permission to park encroaching on common property, and offered to pay a market value for the encroachment.
These requests were met with silence. No discussion or vote has ever occured at any AGMs, EGMs or ECMs during that time. Instead the body corporate has persisted in pursuing legal representation rather than engage in dialogue with me.
The common property in question (13M X 13M) is shared by 3 lot owners.
I find at the first round of adjudication that one of these lot owners alleges that she has difficulty parking her car due to my encroachment.
I tender photographic evidence showing that this is an untruth. My parking encroachment in no way affects her access to her carspace, whether backing in or going in head-first. If she were to come anywhere near my vehicles, she would be in such a position she could not even access her carspace, let alone exit the common property without doing another three point turn.
The other lot owner who also uses this common property has said to me she is also completely unaffected by my parking encroachment, but being new to the block, and already engaged in her own dispute with the body corporate (now solved) she is hesitant to exacerbate matters further as she is in the midst of a renovation.
I assume that if a resident were to ask for written permission, offer to pay rent, and be completely ignored, in the last resort if that resident were to ask for a by-law (allowing parking encroachment onto common property) to be implemented by an adjudicator under s158, it could be argued that the body corporate has acted “unreasonably”.
Just because the body corporate is “upset”, this does not give them the right to ignore written requests et.al. and claim they are “not interested”.
I know from reading in the press that there are calls to limit the number of residents in a strata bedroom. I understand that there are fire hazard and hygene issues at stake.
I believe that parking 3 cars in a 2 car space do not countenance these same issues.
Someone in the block has said my parking ‘looks messy’. What does this mean? The cars are parked straight and are immaculate.
And then … these same people in the block regularly park across their own yellow lines, store fertiliser bags and a ladder in their space etc. and none of these people are pulled up on their behaviour. I for one dont care – they are doing no harm to anyone else in the block so its noone’s business but their own.
If I am not causing anyone any harm, and I am willing to contribute financially towards the body corporate for the parking encroachment, what are the body corporate achieving in fighting me except spending a whole bundle on lawyer’s fees (which I dont believe is an achievement)? I wonder if this same lawyer has also warned them that whatever orders the adjudicator makes has a validity of only two years from date of service …
I am deriving utility and benefiting from the parking arrangement, and the body corporate is not losing anything material, objective, significant or quantifiable, and instead stands to benefit if they accept payment of a rental.
Hi Whale,
Thanks again for the feedback
Let’s see how all this pans out at adjudication!Hi Mattb, thanks for your comments.
I’ve tracked down the development proposal for the block dating back to the early 70s but there is no mention of total number of cars allowed, and certainly no mention of visitor lots (and we have several now, painted in at the behest of the body corporate, so technically these lots are unapproved by council!). The development proposal to council just shows number of carspaces with carspace dimensions. I’ll have to go back to council on this one and get more info. On the other hand, I’ve looked up city of sydney council requirements on turning
circles adjoining carspace lots, and the space I’m leaving other lot owners is double what the sydney city council specifies (and they are using an XD falcon and LTD as models – yes, its an old document!)
Again, thanks for the input!
Hi Struggler and Scotlandx – thanks for commenting
I just want to clarify that thespecial by-law was struck some 6 months after the parking encroachment by me started. The by-laws were not in place when I bought into the complex.
As part of seeking written permission, i also offered to pay a market value for the parking encroachment. and i’ve also offered to have the rental backdated to the date of first encroachment. but i take your point concerning levies and so far i’ve not factored this into the market value of the rental.
two of my three vehicles are large cars. i offered at mediation to downsize these two (ie get smaller cars) so that they would all fit within the lot. this was flatout refused at mediation by the lawyer sent by the body corporate. i even asked whether i could park 2 cars and one motorcycle. absolutely NOT was the response hahaha
lastly, the standard by-law 2 says cars must not be parked on common property without ‘written permission’ – so if written permission is granted, the by-law itself states there is no contravention.
Hi Whale – thanks for your comments.
And what about s157 of the SSMA for repealing by-laws that contradict the original strata plan and are not in the interests of all owners? s144 i thought applied only to common property…
And I believe that s158 may also be used to request exclusive use of common property. Unlike s144 where the onus of proof is on the lot owner to be ‘reasonable’, under s158 it falls to the body corporate to show they are not being ‘unreasonable’. but i’m no expert and i welcome correction on these two statements i’ve just made …
When i bought into the complex, there were no special by-laws in place and i acted based on what i read on the strata plan; so, if i understand what you are saying, a person can buy based on what is in the strata plan and then this can be over-ridden by the body corporate via by-laws.
Hi Mac_1 – i undestand your point about me unambiguously breaking the by-law, but I want you to also know that I have approached the strata manager and chairman of the body corporate asking for written permission to park encroaching on common property.
instead of voting and giving a ‘yes’ or ‘no’ answer, there was alot of name calling at the AGM, all emanating from one certain gentleman i will not identify on this forum (!) and all directed at me – i was compared to ‘Hitler marching on poland’ and ’emperor hirohito sacking the south pacific’ (!) – make of that what you will, i really have no idea what the fuss is all about
The strata manager said nothing (i dont blame him) but then has the gall to send a circular out a few months later telling everyone to be on the guard against bullying by the body corporate hahahaIf the body corporate could give me written permission,there would be no contravention by me of by-law 2. As i have previously said, there is no obstruction or interference with other lot users when i overpark across the lines – it now comes down to the fact that some people think my squeezing in the three cars ‘looks messy’.
But then what next? Are they going to complain the cars look ‘messy’ because they are not colour-matched or are dirty? btw – i try to keep the cars spotless…
as it stands, now i have to go through mediation (again!) to get an order for adjudication on getting a licence to park on common property (s144 SSMA) and an order for exclusive use of common property (s158 SSMA).
can the body corporate continue to withold written permission on subjective grounds (ie 3 cars parked in the space look ‘messy’ and ‘unsightly’?). is this considered ‘unreasonable’ behaviour by the body corporate?
with regard to an earlier comment about ‘steady creep of rogue parking’, i AGREE the same rules are applicable to everyone, and i am NOT exempt from them.
If you feel that you want to park partially or fully on common property, and it doesnt obstruct or interfere with anyone else’s enjoyment of the common property, then it should be allowed subject to written permission. Afterall, you’re not hurting anyone. I am however highly critical of a Body Corporate which will UNREASONABLY withold written permission on purely subjective grounds.
Lynn – i’m in a similar bind!
Whale – I was wondering what your opinion would be if there is a by-law in force that does restrict the number of vehicles applicable to the carspace, but this by-law contradicts the strata plan (ie latter does not restrict number of vehicles, direction in which they are to be parked, or specify lines dividing carspace into two separate carspaces). Which has precedence? ie by-laws or strata plan?
I’m in the situation where there are painted lines dividing my carspace, but the strata plan shows my carspace as one continuous lot, and doesn’t state that only 2 cars can be parked there, nor does it specify in which direction they can be parked (the carspace is open on two sides so i can physically park vehicles perpendicular or parallel in the carspace). the body corporate have registered a by-law prohibiting more than two vehicles being parked in this carspace, even if the vehicles are all within the carspace boundary lines.