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Hi there,
We are in a similar situation to a lot of posters on this forum, with the problem of people parking on common property. We own a place in a block of apartments. The complex has a row of garages each with “common property” out the front (used to access them). The standard has been set amongst renters who are too lazy to open their lock up garage doors, to just park out the front of their garage.
Now, normally this would not bother us, but of course we are at the end next to a brick wall, and when the tenants (who use the garage next to ours), park in front of their garage, is severely restricts access into our garage, making it next to impossible to get in/out.
We have asked them nicely not to park there since we have a big car and cannot get in, but they basically say tough luck and that they will move their car each time if we need to get in/out. Obviously this is not on and against the by-laws (that are clearly stated), so my question is rather simple, though please excuse my naivety as to how to deal with things like this:
What are the correct steps of action required to get this to stop?! Who do we need to contact to make it official, do we need other owners to sign something as witnesses? The only way I can see it stopping, is if they are threatened to be evicted via an “official” warning.
thanks a lot for your help!
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Replies
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First of all, you could try politely reminding them that they are in breach of the by-laws which (I assume) states they can't park on common property. They would have received a copy of the by-laws when they signed their lease – but even if they didn't, ignorance is no defence.
Secondly, point out to them that by being in breach of the by-laws they are almost certainly in breach of their lease (which will state that they have to abide by the by-laws of the strata scheme). So what they think is a minor inconvenience to you is clearly a potential major inconvenience to them.
Meanwhile, you need to ask your Executive Committee or Strata Manager to issue a Notice To Comply. If they ignore that, they face substantial fines to a maximum of $5,500 from the CTTT.
By the way, if you have a camera that can date stamp pictures (digital ones will do so anyway, if you've set the time and date) you should start taking pictures to prove this is a real and ongoing problem.
Having said all that, I think if you politely explain to them that 'it's “tough” on them – if they keep parking there, the will be fined and possibly evicted – they might see the error of their ways.
And, I might make this my Renters Rant in a week or so, so show them the article in the Herald – if that doesn't fix it, then a Notice To Comply is the way to go.
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.
This is a very common problem and many strata schemes have contacted us in the hopes of resolving this parking control issue. A clear and simple parking control by-law can deter owners and occupiers from offending.
Like yourself, many owners corporations get frustrated with owners and occupiers that breach by-laws and often do not know how to deal with these offenders. The owners corporation needs to adopt a clear guideline that provides a step by step process when a complaint is recieved about an offending owner.
For more information of parking control by-laws and enforcing by-laws email us for our FAQ sheet: simone@teyslawyers.com.au
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
Additionally, with a notice to comply, the maximum penalty imposed by the Tribunal is $550.
If an owners corporation does not follow certain steps before issuing a notice to comply their application to impose a penalty on the offender may be dismissed by the Tribunal. A costs order may also be made against the owners corporation if the Tribunal believes the owners corporation's application is frivolous, vexatious, misconceived or lacks in substance.
For more information of enforcing by-laws through warning notices email us: simone@teyslawyers.com.au
Simone Balsara
Lawyer
———————————-
TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
Simone is right, of course, the maximum fine for ignoring a valid notice to comply is $550. But somewhere in the back of my mind there was the much scarier $5.5K which, it turns out, is the maximum fine for failure to observe a CTTT order.
In short, if the rogue parkers ignore a valid Owners Corporation Notice To Comply they can be hit with a fine of up to $550. If they ignore a CTTT order to not park on common property, they face a fine of up to $5,500 for failure to observe the CTTT order.
Me, I'd go the slightly exaggerated but more tactical route of scaring them with huge amounts of money that may or may not be applicable. I mean, a couple of years ago an idiot journalist wrote that you could go to jail for drying your washing on your balcony. True if you ignored a notice to comply, then a CTTT order, then refused to pay the fine and then said you'd rather go to jail than pay it. Rubbish, of course, but it got the model by-laws changed.
Exaggeration or not, the intent is to get them to change their behaviour rather than go through the agonies and uncertainties of CTTT hearings.
Also, if the OC declines to get involved – “It's between two neighbours” is the usual excuse, you can go to Fair Trading as an individual and ask them to issue the NTC.
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.
A problem with a resident parking on common property is a problem for all owners, or for that matter all residents. People see one person continually parking outside their garage, then all of a sudden it will look like Westfields at Christmas time with cars everywhere, blocking everyones garage, blocking the driveway. If it is OK for one………….
We send out notices regarding parking on common property to all owners to remind everyone. We may also send the individual owners who have “forgotten” about parking their own notice “reminding” them that they have been parking there. Unfortunately, we have to send out these reminders regularly as there seems to be alot of residents with short term memory loss.
Your manager should be able to advise you of the correct way to take this matter further with the neighbour blocking your garage.
Your strata manager may be reading the absolute letter of Fair Trading's flawed advice. It does say that the Owner's Corporation has to issue the Notice To Comply – but doesn't mention that can be done by the Executive Committee or, indeed, the strata manager, acting on behalf of the OC, if he or she is empowered to do so. In short, your strata manager is either wrong or lazy (or both).
The EC, however, does have to have a meeting and minute the decision for it to have any standing. But if this was left to general meetings, there would be 51 weeks of chaos in strata blocks with one week of respite leading up to the AGM.
I'll give you the same advice we gave to an owner over damage to paintwork: tell the Strata Manager to check with the Institute of Strata Titles Management, if they are a member – they'll put them right. If they're not a member, start agitating to get rid of them – chances are they are cowboys (which, on this evidence, seems possible).
The person claiming for damage to their paintwork – who'd been told by the strata manager it was up to her to pay for it – got a note back asking when she wanted the painters to come round to give the EC a quote.
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.
If you have an EC then technically your EC could decide to issue a notice to comply at an EC meeting convened and run in accordance with the act. If you don't have an EC (which you seem to suggest may be the case), then you would require a EGM (or the next AGM) to have the notice to comply put on the agenda and voted on. At least that's my understanding.
As for the CTTT, I would think they would expect you to have tried to get this sorted within the strata complex (i.e. through an EC meeting or a EGM/AGM) before contacting them. I'm not sure if they can issue them based on a single owner complaint, so I'll leave that to someone else.
If there is no Executive Committee you can apply to the CTTT for a willing person to a) hold a meeting and b) be the office-bearers.
But the reality is that in most small strata blocks the owners just let the strata manager get on with it – even less reason for the SM to say they can't issue 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.
A letter to the miscreants advising them of the error of their ways will ordinarily assist substantially, copying the owner and leasing agent if it is a tenant will also help.
Jimmy, keep in mind that strata manager’s can not issue a s45 notice autonomously unless there is a specifiic delegation to do so in their agency agreement, most will be very comfortable to do so if the EC have resolved to issue this at a committee meeting.
Even after issuing a NTC the OC may benefit from going to mediation and then seeking an order.
Mr Strata said:
Jimmy, keep in mind that strata manager's can not issue a s45 notice autonomously unless there is a specifiic delegation to do so in their agency agreement …
Which is exactly what I said in my reply to Struggler about four posts ago, viz:
… that can be done by the Executive Committee or, indeed, the strata manager, acting on behalf of the OC, if he or she is empowered to do so.
Hmmm. Just reminding myself not to post after drinking a second glass of red.
JimmyT
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.
Firstly, fill in a form asking for mediation HERE. If your mother is a pensioner do it in her name as it's a lot cheaper.
If mediation doesn't work, take it to the CTTT (but you have to go through mediation first).
Don't forget to go to your next AGM and challenge all the EC members to explain why they are on the EC if they aren't prepared to enforce the by-laws.
The EC isn't there just to address problems they might have and if they're not prepared to accept their responsibilities to other owners, they should get out of the way and allow people who do have some moral fibre to do the job.
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.
All,
Keep in mind that in NSW, if you have an issue with your neighbour being a nuisance, you have the right to be able to take the matter to Fair Trading yourself. This is truly a good thing.
Own your problem and tackle it head on.
The issue you have is that if the ec are to enforce compliance with this by-law for one resident then they will need to take the same stance for all. How does the ec permit some to park on common property and prohibit others?? Quite simply this would be a significant issue.
If a tenant is breaching the by-laws, they are breaching their lease and could be evicted (if the owner and property manager are willing to take action).
Get in and have a go, try mediation through OFT and see what comes… What do you have to lose?
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