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We are a block of 12 units with a DA showing 18 car parking spaces, including a wash bay. One lot owner purchased 2 parking spots with her title, all other residents purchased 1 parking spot per lot. We believe that the block conforms to council requirements for visitor parking, and there are 4 spaces clearly marked as visitor parking.
For over 12 months one owner (wife of a committee member) has parked their 2nd vehicle in a space marked as visitor. Repeated requests, to remove the vehicle have failed and a breach order was defeated by a block of owners with greater lot entitlements (not the majority of owners). A letter from the owners solicitors, has advised all other owners that these owners are not in breach of the bylaw.
The bylaw reads as follows “a resident must not park or stand a vehicle or bicycle on the Common Property other than in those parts of the common property allocated for car parking on an exclusive use basis or those parts of the Common Property designated for standing or parking of vehicles or bicycles”.
We have documented (photos, dates) where this resident is parking exclusively in a visitor park.Does the above bylaw allow for this to occur, as the offenders have also advised a tenant , that they too can park their 2nd vehicle in a space marked for visitors, thus severely limiting visitor parking.
A further point to note is that on a committee of 5, 3 are in the group who opposed issuing a breach order and this includes the husband of the person parking in the visitor spot.
In your opinion, it this worth pursuing further, and if so, what would be the best way forward, bearing in mind that all but three residents are pensioners, so funds are limited.
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The weasel words in your badly written by-law are “… other than in those parts of the common property … designated for standing or parking of vehicles or bicycles.”
The smart-arse lawyer who told them they weren’t in breach of the by-law should hang his or her head in shame for enabling parking thieves by interpreting the letter of the law rather than its spirit or intent.
There are a number of ways you could approach this but, if your DA designates four visitor parking spaces, this is what I would do:
First call an EGM or wait for your next AGM and propose an amendment to the bylaw so it reads something like: “a resident must not park or stand a vehicle or bicycle on the Common Property other than in those parts of the common property allocated for car parking on an exclusive use basis. Residents may not use visitor parking spaces for their own vehicles.”
You might also want to add a clause that specifies how long visitors may park their cars, e.g. a maximum of three hours bewteen 7.30 am and 7.30 pm and that they must vacate by 7.30 am if parking overnight, and excluding long-term guests of owners.
It sounds like there’s a fair chance this new by-law will be defeated, simply due to self-interest of the incumbents on the committee and the apathy of other owners. If it is, that’s OK as it allows you to move to the next stage which is to take your owners corporation to Fair Trading, then NCAT, to get orders (probably under sections 149 or 232 of the Act) to change the by-law.
I’m no lawyer but I think if the chairperson’s lawyer is correct, your parking by-law may well be invalid because it breaches a superior law – the planning laws under which your DA was issued – and therefore should be revoked and/or amended.
Mediation at Fair Trading is free and that may be enough to scare the chair and his cronies into behaving. If it does go to NCAT, you can tell them that you and your supporters will be seeking all costs from the recalcitrants. And make sure you let other owners join your cause officially so that they don’t get slugged with the special levy to cover any costs awards.
Just be careful that in pressing the “invalid by-law” issue, you don’t end up with no by-law at all.
If your by-law effort fails at the general meeting, you may have to hire an experienced strata lawyer to argue your case, but then seek costs, as described above, making sure to give your neighbours a chance to get on board so they don’t endf up losing out financially.
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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