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Topic
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An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners’ corporation”
I have (yes I know, opportunistically) parked three cars in a two car spot in my building.As a result two of my cars encroach onto common property; dimensions of the encroachment are as follows:
Car 1 – 1m length X 1.7m width
Car 2 – 30cm length X 1.67m width
I have been served a notice to comply by the Body Corporate stating that I can be fined up to $550. Is this correct?
Also, the Managing Agent has signed the notice on behalf of the Body Corporate and affixed a seal but there are no other signatures. Is this notice valid? Or do I need to see signatures from two executive committee members?
I will write to the Body Corporate seeking written approval to continue parking my cars in the above fashion. If they refuse, are they obliged to give me a reason? I also wish to add that the common property I am encroaching upon is part of a space measuring approximately 13M by 13M – more than sufficient for any vehicle to turn around in with my cars parked as they are.
I am aware that the Body Corporate has the upper hand in this instance but I would just like to clarify what my rights are (if any).
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Mikey_z4 said:
I have (yes I know, opportunistically) parked three cars in a two car spot in my building. As a result two of my cars encroach onto common property [and] I have been served a notice to comply by the Body Corporate stating that I can be fined up to $550. Is this correct?
If you don't comply with the notice, the Owners Corp can take you to the CTTT and ask them to issue a fine of up to $550 for non-compliance. To be honest, even though the OC seems to be 100 percent right in this matter, there is absolutely no certainty that the CTTT 'chocolate wheel' will support them. It's a lottery.
Also, the Managing Agent has signed the notice on behalf of the Body Corporate and affixed a seal but there are no other signatures. Is this notice valid? Or do I need to see signatures from two executive committee members?
If the strata manager has the powers to issue NTCs delegated to them (as most have) then this notice will be valid without requiring a vote by the EC or signatures of office-bearers.
I will write to the Body Corporate seeking written approval to continue parking my cars in the above fashion. If they refuse, are they obliged to give me a reason?
No.
I also wish to add that the common property I am encroaching upon is part of a space measuring approximately 13M by 13M – more than sufficient for any vehicle to turn around in with my cars parked as they are.
Regardless of whether this is a major inconvenience to other drivers or not, readers of this website who have suffered the steady creep of “rogue parking” will be on the EC's side. It only takes a blind eye to be turned on one small breach before chaos ensues.
Surely rather than trying to find a way round the by-laws you might think about buying or renting the common property space from the OC, then everybody will be happy.
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.
Mikey_z4 said:
Hi Jimmy T, If the Body Corporate applies to the CTTT to apply for a fine, will I have an opportunity to engage with the CTTT to show that I have asked for written permission to park on common property, or offered to purchase or rent the common property? Also, is the fine to be levied on a per day / per month / or per year basis? Thanks again for your advice and Regards.
You will be able to plead your case to the CTTT. Fines are levied per breach or continued breach; if the CTTT fines you and you go back and do the same thing again the penalties go up each time
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.
Mikey – it's not a matter of anyone having the upper hand. YOU are breaking the LAW & to get to this stage you would have been “breaking the law” – time & time again over months, without asking for approval. People parking illegally have no rights – understand that first.
Enforcing by-laws such as those for parking on Common Property is a tough gig. If Building Managers or Chairmen of Strata Plans had the same powers as those of Parking Rangers, then there wouldn't be an issue – you wouldn't park illegally otherwise you'd accept and pay the fine – like in the street – no different. Obey the rules.
My experience with most parking violators suggests they have no regard or consideration for other users, they have no respect for their nieghbours and they have no respect for the law. So the next time you're summoned to appeared before the CTTT – have a think about that.
Hi Mac_1 – i undestand your point about me unambiguously breaking the by-law, but I want you to also know that I have approached the strata manager and chairman of the body corporate asking for written permission to park encroaching on common property.
instead of voting and giving a ‘yes’ or ‘no’ answer, there was alot of name calling at the AGM, all emanating from one certain gentleman i will not identify on this forum (!) and all directed at me – i was compared to ‘Hitler marching on poland’ and ’emperor hirohito sacking the south pacific’ (!) – make of that what you will, i really have no idea what the fuss is all about
The strata manager said nothing (i dont blame him) but then has the gall to send a circular out a few months later telling everyone to be on the guard against bullying by the body corporate hahahaIf the body corporate could give me written permission,there would be no contravention by me of by-law 2. As i have previously said, there is no obstruction or interference with other lot users when i overpark across the lines – it now comes down to the fact that some people think my squeezing in the three cars ‘looks messy’.
But then what next? Are they going to complain the cars look ‘messy’ because they are not colour-matched or are dirty? btw – i try to keep the cars spotless…
as it stands, now i have to go through mediation (again!) to get an order for adjudication on getting a licence to park on common property (s144 SSMA) and an order for exclusive use of common property (s158 SSMA).
can the body corporate continue to withold written permission on subjective grounds (ie 3 cars parked in the space look ‘messy’ and ‘unsightly’?). is this considered ‘unreasonable’ behaviour by the body corporate?
with regard to an earlier comment about ‘steady creep of rogue parking’, i AGREE the same rules are applicable to everyone, and i am NOT exempt from them.
If you feel that you want to park partially or fully on common property, and it doesnt obstruct or interfere with anyone else’s enjoyment of the common property, then it should be allowed subject to written permission. Afterall, you’re not hurting anyone. I am however highly critical of a Body Corporate which will UNREASONABLY withold written permission on purely subjective grounds.
Well yes, name calling and references to fascist dictators is not necessary, whatever the context. However, you are encroaching on common property. I don’t know the circumstances of the property so it isn’t possible to make a call as to whether that is a concern or not, but generally I would say that I would have concerns, for a number of reasons.
You mention in your other post that there is a by-law providing that 2 cars can be parked in the space. Without knowing the background to the by-law, that is the by-law. From what you say, it is not possible to park 3 cars in the space without encroaching on common property so the basis of the by-law doesn’t seem unreasonable. If it was put in before you bought the property, you bought the property on that basis. As it is, you are using part of the common property to enable you to park 3 cars, where the by-law says 2 cars. That use has value – i.e., the value of a 3 car parking space would be significantly more than a 2 car parking space. So you may not be hurting someone, but you are using common property and that is of benefit to you. Similar considerations apply if someone decides to store possessions on common property, they are using space that doesn’t belong to them for their personal use.
I don’t really see the logic of saying if written permission were given there would be no contravention, it is up to the OC/EC as to whether permission is given, and if it isn’t then there is a contravention.
Totally agree with Scotlandx here. If you could park three cars easily within your parking spaces then no problem. But you can’t and so you are using space that is not yours for your own convenience. But you are paying levies based on the unit entitlement that includes your car spaces which only allow for two cars.
If one person encroaches on common property then they all will. If you can get exclusive use by law so you can have this extra space and b responsible for it, pay extra for it, then all well and good. But why someone feels that they should get extra space for free is beyond me.
My complex has many rresidents who have parkinga for two cars but feel they should have another spot, namely the visitors spots, for extra parking because they have three cars, want to use their garage as a gym, dr their laundry n the garage, use their garage as storage or use it as a child’s rumpus room. Those residents with two car spots claimed that the visitors spots are never used so why can’t they use them. It was put to them that if they felt that the visitors spots should be used by residents then the owners with only one garage, who incidentally did not abuse the visitors car spots, should be given first dibs on the visitors spots. There was an outcry. They only paid for one spot why should they get another! But those with two feel they should be entitled to three. Funny how some people’s logic works.
Hi Struggler and Scotlandx – thanks for commenting
I just want to clarify that thespecial by-law was struck some 6 months after the parking encroachment by me started. The by-laws were not in place when I bought into the complex.
As part of seeking written permission, i also offered to pay a market value for the parking encroachment. and i’ve also offered to have the rental backdated to the date of first encroachment. but i take your point concerning levies and so far i’ve not factored this into the market value of the rental.
two of my three vehicles are large cars. i offered at mediation to downsize these two (ie get smaller cars) so that they would all fit within the lot. this was flatout refused at mediation by the lawyer sent by the body corporate. i even asked whether i could park 2 cars and one motorcycle. absolutely NOT was the response hahaha
lastly, the standard by-law 2 says cars must not be parked on common property without ‘written permission’ – so if written permission is granted, the by-law itself states there is no contravention.
@Mikey_z4 said:
Hi Struggler and Scotlandx – thanks for commenting
I just want to clarify that thespecial by-law was struck some 6 months after the parking encroachment by me started. The by-laws were not in place when I bought into the complex.
As part of seeking written permission, i also offered to pay a market value for the parking encroachment. and i’ve also offered to have the rental backdated to the date of first encroachment. but i take your point concerning levies and so far i’ve not factored this into the market value of the rental.
two of my three vehicles are large cars. i offered at mediation to downsize these two (ie get smaller cars) so that they would all fit within the lot. this was flatout refused at mediation by the lawyer sent by the body corporate. i even asked whether i could park 2 cars and one motorcycle. absolutely NOT was the response hahaha
lastly, the standard by-law 2 says cars must not be parked on common property without ‘written permission’ – so if written permission is granted, the by-law itself states there is no contravention.
Hi Mikey_z4,
Another factor to consider is that when your building development was approved by your local council, it was done so with a specific number of car spaces vs visitor spaces vs number of proposed apartments. Another consideration as well as is the amount of turning space/clearance in what is now ‘the common area’. These plans would have been submitted by the developer.
So, even if the OC were in favour of allowing you to buy common space, it simply may contravene the original and current council regulations and you will find that it can’t be granted, no matter how much you offer to pay.
It is likely your EC will need to seek council approval prior to changing the parking plan layout: while this does not apply to every single LGA, it does apply to vast majority.
Hi Mattb, thanks for your comments.
I’ve tracked down the development proposal for the block dating back to the early 70s but there is no mention of total number of cars allowed, and certainly no mention of visitor lots (and we have several now, painted in at the behest of the body corporate, so technically these lots are unapproved by council!). The development proposal to council just shows number of carspaces with carspace dimensions. I’ll have to go back to council on this one and get more info. On the other hand, I’ve looked up city of sydney council requirements on turning
circles adjoining carspace lots, and the space I’m leaving other lot owners is double what the sydney city council specifies (and they are using an XD falcon and LTD as models – yes, its an old document!)
Again, thanks for the input!
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