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DON said:
Is anyone getting away with wheel clamping in Sydney. It is in our By-Laws but debatable whether it is legal if every single resident has not personally expressed consent to that By-Law.
By-laws don’t have to be agreed by everyone to apply to all owners and tenants (see Section 44 below). The law says that when a by-law is properly agreed by the required majority at a properly constituted general meeting, then it has the same effect as if every individual owner signed and sealed the agreement.
That means, in some legal opinions, that the section of the Road Traffic Act that says you can’t clamp vehicles without the owners permission doesn’t apply because if you have a by-law allowing clamping of residents’ cars, then they have effectively given their permission.
NB: this only applies to owners and tenants. Visitors can’t be clamped because they haven’t signed up for the by-laws, even by default.
44 Who is required to comply with the by-laws?
(1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:
(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and
(b) contained mutual covenants to observe and perform all the provisions of the by-laws.
(2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.
(3) In this section, lessee means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.