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There’s nothing quite like a parking issue to get flatters chatting and a question a couple of weeks ago got a pretty hot and heavy response in the Online Herald.
As various, mostly strongly worded views poured in, a couple of things became clear.
First, the laws in NSW relating to towing and clamping of cars are different from other states, especially Queensland. Add that to the fact that basic strata laws are literally all over the place and you get a very confused picture.
Worryingly, a lot of people don’t know what they can and can’t do. I had to chuckle at one reader who wrote: “Unless the laws have changed in the 19 years since I lived in Sydney, you are allowed to tow cars parked illegally on private property.”
Guess what, pal, the laws have changed in the past 19 years, big time. So let’s make this clear: if you live in NSW and someone parks on your land or common property, you can’t tow them, clamp them or block them in. In fact, there’s very little you can legally do, there and then.
One reader even posted a link to the relevant law which talks about “detaining” vehicles and says: “A person must not immobilise a vehicle owned by any other person by means of wheel clamps … except with the consent of that other person.”
Now, think about that last bit. Who’s going to give permission to clamp their cars? Well, some Owners Corporations are getting strata owners to do that by adopting by-laws that allow clamping if they park their cars illegally.
I know this has been effective in curbing rogue parking – although it only applies to residents’ cars – but I wonder if it’s ever been tested. What if someone writes to the Executive Committee and says “I don’t give you permission to clamp my car” or even just votes against it?
I’m told a sign that says: “Warning – cars parked here have been vandalised” works a treat.
Much more on this HERE plus a link to the amended law HERE.
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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Getting back to tors, under the Strata Schemes Management Act, Part 5 Bylaws, Section 43, Clause 4 it states “A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.” So by-laws that allow clamping would not be legal under the current strata legislation in NSW.
It is likely that in this case, owners actually wear two hats – one as a member of the Owners Corporation, and one as 'person' who happens to be a proprietor.
It is quite possible that the legal position here would be that there are two separate legal entities involved in this matter. The Owners Corporation is a legal entity. Separate from that, each individual 'person' is a legal entity. And it is the legal entity called 'Person' that has to give the 'consent'. So even if the legal entity called the Owners Corporation has its members vote on a bylaw that says there is general 'consent' to allow clamping, that is probably not the same as a 'person' who is a proprietor (a separate legal entity) giving their individual consent. Similarly, the Owners Corporation cannot make any other decisions on behalf of individual proprietors (who have rights as citizens in our fair democracy) – and thank goodness for that! This is probably a straightforward legal question and all that is needed is some clear legal advice.Hey there totally understand your frustration, but there is a solution!!! And it doesn't involve clamping!
Out of our own frustration and personal experience living and working in strata buildings where we paid for our parking spots, we absolutely understand your angst and fury!!! As a result we started a business to address exactly this problem!
We have fantastic parking locks – see https://www.thatsmyspot.com.au.
We have both automatic remote controlled parking locks or parking barriers, and manual parking locks or parking barriers, that can be easily installed, work brilliantly and are very user friendly in strata situations. Our products come with a 12 month money back guarantee, and you will just LOVE them.
Just be sure to check with your EC or your owners corporation that they approve fixing to common property in your individual situation. These parking locks are easily installed with 3 x 5 mm deep small drill holes for 3 dynabolts into any surface. The dynabolts can be removed and the drill holes can filled if the unit is removed.
Why not use contract law?
Put up a sign saying:
“In consideration of parking my car here I agree to the following conditions: If I am parking in a manner which is outside the building regulations the owners corp may (1) may clamp my car and/or (2) tow my car away”.
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.
holofernes said:
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.
I think he means me … but then it should have been “who” not “which” so I win.
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.
Dear all,
I have been exposed to this very issue in many situations. I have had clients advise that someone else has parked within their car space and asking what I will do to rectify this. I have explained each and every time that unfortunately as a strata manager, we only manage the common property, not the private property of an owners lot, and essentially the issue is a matter of trespass, which last time I checked, the police have a responsibility to address, just the same as if I were to set up camp in your lounge room.If the local police are not willing to assist, a short call to the Commissioner’s office seems to have an almost immediate effect.
Good Luck,
Mr Sholofernes said: … With regards to consent I think you are confusing contract law and strata law. …
Hello holofernes, “lowly law student”,
Most of us strata dwellers are law abiding and just want to live in peace.
I can not speak for others but I do not care a jot about whether something is part of contract, strata, criminal law (or any other form of “law”.)
I just want some consistency and easy to understand “rules” to help live in harmony with my strata neighbours.
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