Illegal Parking and Wheel Clamping

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.

Don, whilst we don’t yet know the reasons for your query, if your Plan is experiencing problems with illegal parking I’ll let you in on a little trick that one of our Sons and me tried at his strata building, near a commuter railway station.

His Owners Corporation had Registered a Special By-Law covering the wheel clamping and removal of illegally parked vehicles and had purchased a few wheel clamps, but the E/C was hesitant to use them on the same half-dozen or so commuters’ vehicles that were regularly parked in visitors carspaces and in the car wash bays.

So one night he and another couple of cooperative Owners parked their vehicles in some of those carspaces, and we then conspicuously fitted those bright yellow wheel clamps and a placed a similarly coloured typewritten note from the Owners Corporation on each of the windscreens to advise that the vehicles would be towed off-site on the next day.

Then during the next day they put their vehicles back in the correct carspaces (one level lower) and after that, like magic, the illegal parkers disappeared!!

I just rang our Son to check on the current status, and he said that whilst different “visitors” have since appeared periodically, the same trick has chased them away – even though they’ve had to co-opt different Owners to make their vehicles available as the hapless towees.

@JimmyT said:

That’s a car space half-empty point of view, KP.  The proposed legislation will allow, nay, encourage council parking inspectors to patrol strata car parks at the behest of owners.  Has to be a step forward, don’t you think? 

I agree anything is better than nothing but I don’t see how the inspectors will know which cars are which in Visitor spaces. Unless you have a time limit say 2 hours.

What about if they park in residents own parking bay and then it is not even a Strata issue the poor tenant has to go to civil court to take action against the offender for trespass.

Can someone comment who lives in a place that has council parking wardens control parking on their strata.

Here’s a stern warning (and a very naughty suggestion) from a reader.

It seems there are moves afoot to allow local council parking cops onto residential strata property to fine people for “illegal” parking.

I would encourage people to really think about this before we go down that road.

First it creates an adversarial rather than co-operative approach to a growing problem. 

As population densities increase and the problem grows, issuing fines and creating bans will only increase the angst and certainly won’t do anything to solve the problem.

We are going to have more cars. Consequently, we will need places to put them.

Surely we can come up with something better than handing out pay up notices?

Has there been any clarification of this?

Have new rules been introduced?

For tenants that may use visitor parking for short periods, discussions could be had with the body corporate for reasonable to prevail.

For example, my partner is a nurse working a 24 hour roster. Often she arrives home with no parking available in the street, within a kilometer of our building. She uses the visitor parking to save her walking a long distance from car to home, late at night. One of us then moves the car to the street the next morning when all the business hours people have gone to work.

Surely this is reasonable and acceptable?

As for commuters using visitor spaces as their personal free all day spaces, fines may be the only answer, but care should be taken to ensure the offending vehicles are correctly targeted. 

We have a problem with residents regularly parking in visitor’s spaces.

The problem is that it is difficult to determine, and prove, which unit these residents live in. There doesn’t seem to be any easy way to confirm ownership of the vehicle.

We are looking at the possibility of fitting lockable barriers to the spaces, and suggesting residents apply to the OC if they want to use them for bona fide guests. Would this be breaching any laws?

Allocating visitor spaces to your own residents would be in breach of your development approval.

A better idea might be to devise a by-law with strict set of parameters for use of visitor spaces. Something like maximum three hours in any 24-hour period with the exception of overnights who can’t park before 8pm and must vacate by 8 am.

Then you bollard the visitor spaces and provide keys to any residents who sign a document agreeing to the restriction and pay a refundable key deposit.

When bona fide visitors arrive, the residents use their keys to let them in.

Or you wait for the new laws to come in, print visitor parking permits for your scheme and ask your council rangers to patrol the car park and ticket anyone who is parked in visitors parking without a permit.