#13769
holofernes
Flatchatter

    Hi Jimmy,

    Came by your forum by way of your column on the SMH — very easy to read, and informative!

    Regarding this column though I have to make a comment. I'm certainly not as experienced as you and many others are in strata matters, just a lowly law student and strata dweller. With regards to consent I think you are confusing contract law and strata law.

    The use of certain areas of common property as visitors parking means that there is at the very least an implied license to enter and park on the land. The license can be revoked or subject to terms in the same way that entry into a commercial parking lot means acquiescing to terms and conditions relating to your contract for parking. If the terms include the ability to clamp your car, I can't see how you haven't consented to it if you continue to park there, just like you consent to the terms of a parking lot upon entry.

    Separately from that various by-laws may forbid owners from parking in visitors parking with penalties that may be enforced through the CTTT. If another by-law is passed that says that all owners/occupiers/mortgagees in possession etc consent to clamping their vehicles if they are found to be parked in visitors parking, then this binds all owners by virtue of s44 of the Strata Schemes Management Act 1996 in the same way that any valid by-law binds all owners regardless of whether they agree to it or not.

    Lastly in regards to towing, s 651A of the LGA seems to only apply to clamps and other immobilisation devices (haven't read the reglations to see what others there are), but s 651B seems to contemplate a towing situation, that is “taking possession of a vehicle that has been left on premises”.

    In any case I think the issue is fraught with difficulty as I see even posts from supposedly strata experts which seem to forget the common law issues when considering strata issues.