Austman said:
… the OC has a right to make rules on “Behaviour of owners, occupiers and invitees”? (at least they can in Victoria) And in Victorian model rules: “An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.”
You’re right, of course, but there’s a big difference between the legality and the practicality. As you say, there are potential sanctions against the owner under the clause you quote (or its NSW equivalent) of being responsible for the behaviour of your guests.
But it’s hard enough to moderate the behaviour of residents whose own behaviour is bound by by-laws without pursuing people who are one or more degrees of separation away from the actual culprits.
If the car space renter, for instance, allows his or her mates to tail-gate them into the car park and park in visitors’ parking while they go out for the night, who’s going to chase the car space owner? And if you do, what are they going to do about it? This isn’t fantasy or worst-case scenario, by the way. Anywhere that car parking is at a premium will have these kinds of issues.
As for the legality of banning non-resident parking, it is in the local council planning approvals of some inner city buildings that their parking is strictly for residents and bona fide visitors only. They also insist that visitor parking is kept exactly for that and not rented or sold off.
And to follow your argument about visitors to its logical conclusion, could you rent access to the gym and swimming pool too? And what about double-dipping landlords who rent out their apartments but keep a key so they can use the facilities?
Getting back to the question on whether or not it’s legal to have a by-law forbidding non-residents from renting car spaces, the following section of the NSW strata Act would tend to back you up:
49 Restrictions on by-laws
(1) By-law cannot prevent dealing relating to lot
No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.
This ‘dealing’ law has been used (with varying degrees of success) to argue in court in defence of everything from short-term rentals to over-crowding apartments and would seem to support your thesis that you can’t prevent people from renting their car space (provided it isn’t common property) to whomever they want.
But if it became an issue, I’m sure the Owners Corp would argue that there are superior laws, including planning law, that would forbid there being, for instance, a commercial car park in the building.
And let’s not forget the Owners Corporations are not some faceless entity – they are the majority of people in the building and if they would rather not have complete strangers in their car park, I reckon they are allowed to make it so.
One final thought from the dim recesses of my memory. I used to live in an apartment block in Kings Cross that had been allowed to build a few extra floors in exchange for providing parking for the Housing Commission block across the laneway.
Many of the HC residents didn’t have cars but they rented their spaces out. Remember, this was Kings Cross and right on one of the most notorious laneways in the area and we had no idea who ws coming and going from our building. We actually had one guy living in a parking cage.
The way the building was designed, access to the car park allowed free access to every floor of the building. We needed to beef up our security anyway but rather than install an impossibly expensive exclusion system, we put in electronic keys just for the front and garage doors and announced an audit of all parking. Residents had to match their key with their car space number and their car rego.
The first thing that happened was that the HC car spaces all but emptied. The next thing that happened was we got a very heavy letter from the Housing Department demanding something like 30 front door keys to be handed to them for distribution to their tenants – no registration required.
We said, “no registration, no keys” so they took us to the CTTT where the adjudicator decided that the security of our homes was more important than the freedom of our neighbours to rent out their car spaces to whomever they wished.
We weren’t preventing them from accessing the spaces – we just wanted to be sure they were accountable. By the way, there were two or three HC tenants who willingly took part in the audit and continued to park their cars in our building, no problem.
This was about 15 years ago but I’d be very surprised if the attitudes at the CTTT have softened any to uncontrolled parking.