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There’s a lot of confusion about whether or not we can clamp illegally parked cars. Beverley Hoskinson-Green of our sponsors Makinson & d’Apice, give us the definitive answer – even if it is, yes and no.
The way it works is this:
- The Local Government Act (LGA) prohibits (in an obscure part – sections 651A, 651B and 651C – I’d call that buried, wouldn’t you?) wheel-clamping and towing of vehicles without the consent of the owner.
- The by-laws for a strata scheme bind the owners corporation, owners and occupiers (and mortgagees, covenant chargees in possession, lessees etc etc) to the same extent as if they had been signed and sealed by each of them and the by-laws contained mutual covenants to observe and perform all of their provisions (section 44(1) of the Strata Schemes Management Act (SSMA)).
- Those words (signed and sealed) mean that the by-laws operate as deed and the obligations in the by-laws operate as a covenant on the part of the owners corporation, owners and occupiers (and mortgagees, lessees etc etc) to observe and perform their obligations arising under them.
- A covenant is an agreement, promise or pledge on the part of one person to do something or observe or be bound by something.
- As a result, a properly worded by-law providing for the wheel-clamping or towing of a vehicle owned by an owner, lessee or occupier (or any mortgagee, etc etc) that is parked on the common property in breach of the by-laws operates as a consent to that wheel-clamping or towing for the purposes of the LGA.
- The problem with the by-law approach is that, while section 44 of the SSMA provides that by-laws bind owners corporations, owners, occupiers and lessees, it does not include any reference to visitors.
- So the tradesman who parks his ute in the driveway, the commuter who parks in visitor parking and all the other sundry visitors to the strata scheme who leave their vehicles littered around the common property can’t be lawfully wheel-clamped in reliance on a wheel-clamping by-law.
There are other problems with the by-law approach.
First, it is very difficult for owners corporations to get a towing company to tow a vehicle away in reliance on the by-law. They have it firmly fixed in their collective minds that private towing of vehicles without a direction from the owner of that vehicle is illegal and that they will be fined if they do it. Explaining the fine points of the law of deeds, covenants and by-laws to tow truck operators tends to fall on deaf ears.
Secondly, while an owners corporation can itself affix a wheel-clamp to an offending vehicle, when it comes time to remove it, most members of the executive committee or a building manager, caretaker or the like don’t want to deal with a very irate illegal parker. Rather, it would be best if a security company is hired to both affix the wheel-clamp and attend to its removal. The problem with that is that you run into the same issue as with the towing companies – convincing them that wheel-clamping in accordance with the by-law is lawful.
Thirdly, there is a technical issue arising under the LGA provisions which prohibits the wheel-clamping of “a vehicle owned by any other person …except with the consent of that other person”, which gives rise to questions about the ownership of the actual vehicle (in addition to the issue as to whether the vehicle was parked unlawfully by an owner or occupier of a lot in the strata scheme). There are arguments about the implied consent of an actual owner which I won’t go into here. But it is another issue that makes the by-law approach less than satisfactory.
Now, having said all that, I act for a very large strata scheme at St Leonards that is quite close to St Leonards railway station. They have had significant problems with commuters using their car park to “park and ride” and with residents using visitor parking as their second car space. The owners corporation adopted a wheel-clamping by-law I drafted over a year ago and the building manager has wheel-clamped a very small number of vehicles. The effect has been to stop the illegal parking both by the trespassing commuters and by residents parking in breach of the by-laws.
Beverley Hoskinson-Green
Partner l Makinson & d’Apice, Lawyers
Level 12, 135 King Street, Sydney NSW 2000
Website http://www.makdap.com.au
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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I went to the Fair Trading press release, and didn’t know whether to laugh or cry when I read Mr Stowe’s observation that “when people who are neither residents nor visitors of residents park their cars within the boundaries of a strata scheme, the owners corporation can contact the local council or police who may then order the removal of the car.” Can anyone cite an example of this having happened (other than when the car has been identified as reported stolen)? It seems our supposed justice system is intent on protecting offenders from their victims.
I would like to say I can’t believe it, but I can, that advice is just plain stupid. Following that logic, successors in title would never be bound by the by-laws of a strata scheme, unless they had specifically consented to them.
The whole point of by-laws is:
– in the case of a general by-law the majority rules, if the requisite number vote for it that is the by-law.
– by-laws bind successors in title.
Aside from that, general by-laws don’t require the consent of each owner. It is exclusive use by-laws that require specific consent of the relevant lot owner, and in that case a successor in title is bound by that consent.
I was also puzzled by the advice given by Fair Trading re how to deal with rogue parkers. Why should the owners have to wear the cost of putting up gates and electronic scans etc., to deal with something that is illegal?
Scotlandx, This isn’t to do with bylaws affecting new owners, I think this has much more to do with bylaws not being able to overrule state law.
There was a time when wheelclamping on private property was common. Property owners would put up a sign, or have some other mechanism of implied consent allowing them to put clamps on. There were all sorts of problems with difficulties in getting the clamps removed, with extortionate fees being demanded and unreasonable delays. This resulted in numerous complaints, some resulting in violence and other escalation, and many episodes of trashy current affairs shows were dedicated to the issue. Eventually the government legislated against these practices (in 1998 for NSW, I think).
My understanding is that the reference to “with consent” was included to allow people to use wheel clamps to secure their own vehicles against theft (eg, caravans, boat trailers, etc).
It doesn’t surprise me that you have this response from Fair Trading when trying to interpret “with consent” in order to do precisely what the law was designed to prevent.
Obviously nobody is questioning that they shouldn’t be parking there. The issue here is that State law essentially prohibits using wheel clamping as a punishment and a strata bylaw is unable to override it (one would assume that offenders would not consent to being punished).
Interestingly, my employer still uses wheel clamps. They justify it with a big sign at the entrances and only clamping after several warnings and only where they have no idea who the owner is. They also remove the clamps immediately when asked (24 hour on-site security, and the response is fast), and don’t charge for this, so nobody has bothered making a complaint. However, with strata parking… You only have to get one person who is inconvenienced and/or vindictive and you will end up with a complaint, and I believe the fine is $300 for clamping plus a further $300 for not releasing it immediately without charge.
But then again, I’m not a lawyer so I could be completely wrong (although I won’t be the one to test it).
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