Flat Chat Strata Forum Parking Peeves Current Page

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  • #8263
    BRoe
    Flatchatter

      I have an investment property which I rent out to a friend of mine who is in her 70’s.  Because she doesn’t drive I rented out only the apartment to her and leased the garage separately.  I was fortunate in the first 17 mths to have someone in the block leasing the garage.  Now it is vacant and has been for the last 3 months.  I have approached the body corporate asking them if I could rent it to someone outside the block. They will not allow it as they are concerned the person who leases the garage will have the security key to the garages and the internal block. As the unit is near the ocean, I am certain finding someone would be not too difficult.  I have noticed that the tenants use the visitors’ spots for their cars and I am trying to address this issue with the body corporate.  Whether that fixes my problem is another matter.  Can the body corporate prevent me from leasing the garage to someone who doesn’t live in the block? It is not a by-law under their Strata Rules.

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    • #15927
      struggler
      Flatchatter

        So the EC picked and chooses what they enforce in this complex? They are telling you what you can’t do but obviously not telling the residents that they can’t park in the visitors spots which in most complexes in a by law.
        Though I would be concerned about renting out a garage to just anyone who would then have a security key. It is obviously not a garage located on the outside of the building. But if you get the EC to actually monitor the visitors car spots, you may well find someone in the building who will then be in need of a garage. But why would they pay you for the privilege of extra parking when the EC let’s them use the visitors spots for free and without penalty?

        #15929
        kiwipaul
        Flatchatter

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          Posting removed at poster’s request.

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          #15936
          Jimmy-T
          Keymaster

            Many unit blocks in Sydney ban letting car spaces to non-residents and a by-law forbidding it being the most obvious mechanism for doing this.
            Also, some blocks in certain local council areas are prevented from doing this under the terms of their Development Approval. Another less direct by-law would be one demanding that owners don’t compromise the security of the building or that their ‘guests’ are accompanied at all times.
            However, this owner would indeed be morally entitled to demand that the EC fix visitors parking first before they came after her. Two wrongs don’t make a right but she would have a pretty compelling argument to take to mediation if she was issued with a Notice To Comply.

            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.
            #15937
            Boronia
            Flatchatter


              @JimmyT
              said:
              Another less direct by-law would be one demanding that owners don’t compromise the security of the building or that their ‘guests’ are accompanied at all times.

               Why would a person with a lease to a car space be any more of a “security risk” than a tenant in the residential section?

              Where I live we have had more security problems from tenants (and former tenants) than outsiders.

              #15940
              Jimmy-T
              Keymaster

                Boronia said:

                Why would a person with a lease to a car space be any more of a “security risk” than a tenant in the residential section?

                I was referring to a mechanism that could feasibly be in place to prevent outsiders from accessing rented car space.
                But since you raise the question, I think the problem with outsiders renting car spaces is that they have no long-term commitment to the place, are largely unaccountable (because they are not covered by the by-laws in any effective sense) and the people running the building usually don’t even know who they are.
                In my building, access to one car space means access to three levels of parking as well as common areas. I think the increased risk from people whom you don’t know and can’t be traced is fairly obvious. At the very least, there is nothing to stop the car park lessee giving access to mates. None of these people are subject to by-laws in any meaningful way so the potential for problems is pretty clear.
                The Act says you have to give notice of any lease or sub-lease of a “lot” to the Owners Corp, including the name of the tenant. I don’t see any reason why that wouldn’t apply to car spaces, especially if they were separate lots on the plan, but I have never heard of it happening.
                I don’t want pass keys to my building going “wild” to the general public and I don’t want unknown and unaccountable individuals having access to my car park. If you live in an area where security is an issue, you don’t want strangers having free access to your building, end of story.
                And I suspect that former tenants who’ve held on to their pass keys may have been a problem you were referring to – if so, I reckon that strengthens my argument and it’s certainly why more and more buildings are turning to some form of electronic access that can be cancelled when residents move on but take their keys with them.
                But I do agree with the original poster that forbidding outside rentals while allowing residents to park freely in visitor’s parking is a nonsense and the EC concerned need to take a look at their priorities.

                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.
                #15941
                struggler
                Flatchatter

                  I know someone who received a knock on the door one day from the police asking if his was garage number XX.  Turns out, this garage was used by a criminal gang, storing goods in the garage – that they had rented from an owner who didn’t use it! 

                  So I am guessing no formal leasing agreement.  Perhaps not even a copy of ID.  Just an add in the paper, someone responds.  Cash in hand to the owner.  Everyone is happy.  But no one knows who is actually using the garage and what for.

                  #15943
                  Austman
                  Flatchatter


                    @JimmyT
                    said:
                     Many unit blocks in Sydney ban letting car spaces to non-residents and a by-law forbidding it being the most obvious mechanism for doing this.

                    It happens in Victoria too.  Even in a building where I own a leased apartment.  But I have often wondered if it is legal.  Or if it would stand up, if legally challenged.

                    OC’s cannot restrict if a lot gets let or who the lot is let to.  So I wonder how they can do it to a car space – which is also a lot or part of a lot.

                    Controlling general security and resident behaviour is one thing.  And if a non-resident caused problems there would be a case to take action against them.  But banning letting or sub-letting? Can it realistically be done?

                    As for security – well anyone can give out door PIN codes,  remote control devices and even copies of building keys that are not copy protected.  There are limits to what can be practically done re the common entry security to many buildings.  Is a car space renter necessarily an increase in security risk over the party giver that gave out the PIN code to 50 friends?

                    #15945
                    Jimmy-T
                    Keymaster

                      Austman said:

                      Controlling general security and resident behaviour is one thing.  And if a non-resident caused problems there would be a case to take action against them. 

                      How does an Owners Corp take action against non-residents?  It’s hard enough enforcing by-laws against those who are supposed to be bound by them. Non-resident carpark lessees have probably signed nothing and even if they had it would have no legal  effect and carry no conceivable sanctions.  One of the problems in many open complexes (especially near rail stations) is non-residents parking illegally on common property where the local council parking wardens say “not our problem” and the Owners Corp has no comeback because they aren’t allowed to clamp or tow.

                      But, to reiterate, maintaining security is the ‘excuse’ some buildings might use for excluding non-resident parking – it need not necessarily be the actual problem that they are concerned about.

                      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.
                      #15952
                      kiwipaul
                      Flatchatter

                        @JimmyT said:
                        However, this owner would indeed be morally entitled to demand that the EC fix visitors parking first before they came after her. Two wrongs don’t make a right but she would have a pretty compelling argument to take to mediation if she was issued with a Notice To Comply.

                        Morality don’t come into it just the law. Your argument that because EC doesn’t enforce one bylaw they cannot enforce any bylaw is seriously flawed. If that was the case any complainant would only have to show at CTTT that EC failed to enforce bylaw x so they are unable to now enforce bylaw y.

                        I agree if they fail to enforce bylaw x against Fred they cannot then enforce the same bylaw x against Joe, because they have to be consistent.

                        OP clearly stated that their was NO restriction in the bylaws for this situation in this complex and the act only states you have to inform BC of the lessees details it doesn’t give the BC powers to refuse permission so I cannot see it being a CTTT issue.

                        Maybe local council have a restriction on subletting residential car spaces but to know that you would have to know which council we are talking about and OP doesn’t indicate this. If this was the case surely the council would have to take action against the OP not the OC and the chance of the council taking action in respect of 1 parking space is I believe negligible (even if they knew about it).

                        Just my opinion.

                        #15951
                        Jimmy-T
                        Keymaster

                          kiwipaul said:

                          Morality don’t come into it just the law. Your argument that because EC doesn’t enforce one bylaw they cannot enforce any bylaw is seriously flawed. If that was the case any complainant would only have to show at CTTT that EC failed to enforce bylaw x so they are unable to now enforce bylaw y.

                          Firstly, I never said “because EC doesn’t enforce one bylaw they cannot enforce any bylaw”, nor would I.  These are your words, not mine.

                          I was talking specifically about mediation (which is why I used the word ‘mediation’) and in that case morality certainly does come into it.  Mediation is an attempt to reach a compromise in the hope than time and money aren’t wasted in the nitpicking of the law when a solution that would suit everyone is there to be had.  It is far from “just the law”.

                          So, in this case, I would be saying, you enforce the by-laws against parking in visitors parking and I will only rent my car space to residents.

                          By the way, if there is no specific by-law against renting car spaces to non-residents, and there are no other mechanisms, such as requiring guests to the complex to be accompanied at all times, or over-arching by-laws about maintaining security, this owner can tell the EC to take a jump.

                          One of the most fundamental aspects of a Notice To Comply is that the by-law that has been breached has to be listed.  No by-law, no breach.

                          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.
                          #15954
                          Austman
                          Flatchatter

                            @JimmyT said:

                            How does an Owners Corp take action against non-residents?

                            Because 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.”

                            So this goes far beyond owners or occupiers to include anyone that is even “invited”.  So it is ultimately the owner or occupier that is responsible.  And they are the persons that the OC takes action against.

                            But the question still remains, can an OC realistically or legally ban the use of a lot’s car space by non-residents?   I know the reasons for it (security concerns etc).   I just don’t see how it can be legally or practically done.   Sub-letting is not illegal.  And an owner/occupier might allow anyone to have the car space for free if they wanted (eg it might be for a family member or a friend). An owner/occupier might want to allow a visitor to park there.  How would the OC even know?   

                            #15955
                            Jimmy-T
                            Keymaster

                              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.

                              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.
                              #15973
                              pmo

                                An OC cannot legally prevent an owner from leasing their lot or lots to more than one person and any By-law that attempts to do so is invalid by virtue of Sect. 49 of the Act, as has been pointed out. 

                                In the absence of any Local Government regulation, it follows therefore that an owner can rent out a garage to one person and the unit to another person. 

                                As the Chairman and Secretary of an OC I don’t particularly like the situation due to the security aspect, but that is the law. No good going to the CTTT. They cannot override the Act.

                                #15980
                                Jimmy-T
                                Keymaster


                                  @pmo
                                  said:

                                  An OC cannot legally prevent an owner from leasing their lot or lots to more than one person and any By-law that attempts to do so is invalid by virtue of Sect. 49 of the Act, as has been pointed out. 

                                  This is good news for our original poster who was told she couldn’t rent her car space to non-residents.

                                  But for those owners who want to prevent this happening  for security reasons, is there another way around this?

                                  How would it be if you made the by-law not about renting space but the issuing of access keys?  Is there anything to stop an Owners Corp deciding only to issue electronic access keys to residents, and giving them the power to cancel keys through, say, an annual audit?

                                  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.
                                  #15985
                                  pmo

                                    Doing that would unfortunately also breach Sect. 49 of the Act, which makes it illegal to “restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot”.

                                    Refusing to give a separate key to each tenant of a lot is clearly such a restriction as it effectively prevents the lease from happening.

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