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Without Prejudice
The DA of our apartment block specifies that there is one parking spot per unit. It further specifies that this comprises 11 lock up garages on separate title, 4 undercover parking spaces on common property and 5 uncovered spaces on common property.
However, a subsequent exclusive use bylaw has allocated two of the undercover parking spaces to one unit holder, a second undercover parking space to an owner who already owns a lock up garage on separate title, and a third undercover parking space to a single owner.
Consequently, there is not one parking spot per unit available as outlined in the DA.
Is this exclusive use by-law valid and can it be overturned when one of the conditions of the by-law states that it requires 100% agreement of the BC?
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If your DA specifically and clearly says that there is one car space for each unit, the the by-law is invalid. It would require approval from the council to change the allocation.
If the exclusive use by-law is valid (and after two years the Act ‘assumes’ all required preconditions were met) then you are stuck with it.
You might, however, be able to challenge it on the grounds that the EC at the time unduly influenced the Owners Corp and effectively conducted a land grab.
At the very least, the occupants of the additional common property parking should have been paying rent to the Owners Corp.
That said, I can’t see this getting anywhere unless you talk to a strata lawyer.
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.
Does the DA specify that there is a parking space for each unit? Or does the number of parking spaces just happen to coincide with the number of units?
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 the DA clearly says one parking sport per unit then any by-law that attempted to subvert that would not be valid. In simple terms, by-laws can’t be created if they are in conflict with superior laws (in this case, your planning laws).
Obviously, the people who have benefitted from this aren’t going to give up their parking spots without a fight but that doesn’t mean you shouldn’t press on with this.
As for people who bought their unit in good faith, believing it had access to more than one parking spot, that may well be a case of “caveat emptor”.
If you feel strongly enough about this, you could call a general meeting, proposing a by-law or even a simple resolution re-allocating the spaces to different units (where necessary). If that failed, then you could seek orders at NCAT for the Owners Corp to abide by the DA.
It will be tough fight and cause a lot of bitterness, so make sure you have the majority of owners on your side.
And before doing anything else, talk to an experienced strata lawyer.
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.
When our OC had purported to allocate parking spaces as exclusive use ‘special privileges’ to particular unit owners over a period of several decades but not according to the required process (unopposed resolution in the ACT), our lawyer advised that the OC could be liable to compensate a subset of owners for the loss of value to their unit. In our case we had a policy in place to allocate only one space to smaller units and no more than two to larger units, and that was consistent with the original DA. Consequently, the solution was to now allocate according to the correct procedure and to ensure that the motion would pass by also including allocation of one or two spaces to all other units that had not yet had a space allocated, in accordance with the same policy.
Some unit owners opposed the motion, so it failed, but we then sought and received orders from the Tribunal to give effect to the motion on the grounds that objection to the motion was unreasonable.
You might have to work out what the most reasonable workable solution would be and put that up as a motion after as much consultation as you can bear. If whatever solution is the best achievable in the circumstances, you might get it up, especially in NSW where I think you need a special resolution, not unopposed. If you have the best negotiated solution and it is in accordance with legal advice and a majority support it yet the motion fails, then you might have the motion ‘given effect’ by the tribunal, like we did.
We have a similar issue in that our development consent, which is dated December 1977, states that our block of 5 townhouses, each with an attached garage, is to have provision for 10 car spaces, five of which are to be available at “all times” for visitors and services vehicles.
However, two of the owners converted their garages to living spaces (one 12 months ago, and the other about 7 years ago) neither submitting applications to the Owners Corporation for consideration, or to the local council for DA approval. These owners/tenants park their vehicles in the visitors car spaces, permanently blocking access to 2 of the 5 visitors car spaces, and they store their personal belongings (surfboards, prams, buildings equipment, garbage bins and bikes) in a third visitors car space which leaves only 2 spaces available for visitors. The owner who converted his garage 7 years ago is claiming that he can park in the visitors car spaces (he takes up 2 as he parks in front of his garage which blocks access to the 2 visitors car spaces) as he’s been doing it for 20 years. At the recent AGM, the Managing Agent at least advised him that he has been breaching the bylaws for 20 years!
Over the last 12 months I regularly sought advice from our Managing Agent on the three related issues without any success and despite having the issues on the agenda for the recent AGM, including proposing that, for the sake of fairness, we create a special bylaw to give exclusive use to one visitors car space per unit, the 3 owners who are the instigators of the above actions colluded to have the issues not considered further, except for the removal of personal items from common property. As this has not happened, I requested the Managing Agent take action to have the belongings removed. The Managing Agent has advised that they cannot take action unless authorised by the Executive Committee who have not followed up on the resolution from the AGM.
Can anyway confirm or advise if the Managing Agent has delegation to take action if the EC does not, as the OC had agreed at the AGM that action would be taken?
Regarding the visitors car spaces, the Office of Fair Trading has advised that I lodge a complaint against the Owners Corporation as it is failing to ensure owners/tenants adhere to the bylaws, while that does include me, it appears it may be my only course of action as I do not have the necessary support to get the Managing Agent to issue compliance notes. I have decided to delay lodging a complaint with the NCAT regarding the visitors car parking issue as I have lodged a complaint with the Council regarding the illegal garage conversions (this was suggested by the Office of Fair Trading). I’m hopeful that in Council’s review, which includes referring to the approved development consent, that the issue of the visitors car spaces will be resolved.
It is not very pleasant to be in dispute with your neighbours, however, sometimes there is no other choice!
I think you have to go back to square one on this. Passing an exclusive use by-law retrospectively, to allow limited use, would have been pointless as your DA clearly allows for a certain number of visitor parking spots. Any by-law that tried to change that would not stand as by-laws can’t be in contravention of superior laws (like planning laws).
Your strata manager is absolutely right and I would be telling the rogue parkers (or parking thieves, as I call them) a few facts of life.
1. They have converted garages into dwellings without planning permission or permission of the Owners Corp. This is illegal and they could be ordered to return them to their previous state.
2. They have taken over visitor parking illegally and obstructed other spaces, again illegally. They could face orders and fines from NCAT.
So tell them that 20 years ago was another century and things are different now – people who live is strata expect everyone else to obey the law.
They want to have their illegal cake and eat it but this has to stop. If they don’t start acting like good and reasonable members of the community, you (and hopefully other owners) will:
- take action at NCAT to compel them the Owners Corp to issue Notices To Comply and seek orders and
- inform council about illegal change of use.
- Apply to NCAT to have a strata manager appointed to take over the running of the scheme because of their flagrant disregard for strata law and planning laws.
Now, what these land-grabbers can or will do is entirely another issue but if they say “we have always done this …” let them see how that stands at NCAT and at the Land and Environment Court when council orders them to return their garages to their intended use.
In other words – move the cars or lose the illegal extensions to their homes. They have stolen common property to allow them to expand their homes at everyone else’s expense. I would have zero sympathy for them. They’ve had a good run for 20 years – it’s time to put things back the way they should be.
By the way, taking action against your own Owners Corp is far from unusual – and there are mechanisms to ensure that you don’t have to pay a share of their fines and legal costs.
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.
Thank you Jimmy
It’s been a frustrating 12-18 months but I feel buoyed by your comments! I have been accused of bullying and being “un-neighbourly” simply because I raised concerns about the legality of the garage conversions and the “land grab”, as you call it, of the parking spaces. The current Chair of the EC wrote to the Managing Agent declaring that if the majority of owners agree to the garage conversions and residents parking in the visitors car spaces, then it should be allowed! At the recent AGM I proposed that the OC take carriage of dealing with the illegal garage conversions, but the motion was not supported and the Managing Agent suggested individuals could make their own enquiries with council, which I’ve done as I there is no support from the OC.
I believe our strata manager is not acting in the best interests of owners as their advice on the issues has been less than helpful, therefore I lodged a general complaint with the OFT against our them, but the OFT did not think there was sufficient evidence to take any action against them and suggested the complaint be lodged against the OC instead.
One of the garage converters has now put their property on market and I fear the new owners will assume they can park where they like as they don’t have a garage for their car! Buyer beware!!!
Because of the potential new owners/tenants, just this week I asked the strata manager to have “visitors only parking” signs erected, as per the development consent, but she advised that the issue would need to go to general meeting or wait until next July’s AGM.
If the development consent stipulates the parking is to be marked, wouldn’t the strata manager have authority to have work undertaken without needing to take it to a vote of the OC or seek agreement from the EC?
I live in Brisbane so come under the QLD BCCM. A complex of 4 townhouses, one being the original old house with 3 townhouses built behind it.
When I purchased, the approved DA plans were 1 garage and 1 visitor space between all of the townhouses, the original house with 2 garages.
The original house converted 1 of the garages to a 4th bedroom and “created” a space external (still common property) as their 2nd park.
I learn that, an “illegal” CMS was registered 4 years prior giving exclusive use of 2 of the visitor parks to the committee members. They used them for additional living and “created” 2 additional parks on the “shared easement” – both acts against the approved DA plans.
One of the car spaces on the easement obstructed the exit from my own garage.
After 2 years of trying to reason with the committee/manager, including getting the approved DA plans and conditions, pointing out how illegal it all was, I finally went to the Council – Enforcement Notice issued.
I also went to the Commissioners office with an adjudication application to stop them incurring costs on to me being the only “compliant” lot.
A long story short – I was let down by everyone, body corporate corruption demonstrated to it’s fullest – The committee applied for a DA change, provided no visibility of what they were applying for.
The first application was to retain the car spaces on the easement as “their” visitor parks, obstructing my own garage. Luckily that was rejected by Council, but I was forced to pay my allocations % of the $2,200 for the plans and $2,500 for the application.
The second application ($3,300 for plans and $2,050 for charges the committee refuse evidence of), still with no visibility but was approved by council.
All my objections, a petition with nearly every resident in my street objecting, an Ombudsman complaint – but all confirming the Council acted within the requirements of the town planning act, body corporate issues nothing to do with council.
The outcome of the new DA was to reduce the total number of parks by 1 and reduce the number of visitor parks from 3 to 1!!!!! And yes, you got it, the one visitor park for all lots to use, and it is the one on my back door step!!!! cars obstruct access to my back door, the outside lights are off of my utilities, the outside water tap also off of my utilities!!!!!
What did the Committee get:
– retain the “illegally garaged off visitor parks”, providing the Committee with 2 garages instead of the 1 they purchased. No purchase/compensation or ongoing rent.
– relabel those garaged off parks to be “residential garages” instead of visitor parks – which means still common property so I still have to pay my levy allocation % based on that land.
– The committee then “approves” the original house to use the common property external as their 2nd car park (rejected by Council to be a park as does not meet size requirements)
– have a committee meeting, with no notice (we are small scheme), and vote to “rescind” my Lot’s use of the visitor car space designed for my Lot !!!!!!
All of this cost me in Special Levies $3,000.
Mine is the only Lot that does not have 2 car parks
My visitors are now questioned to who they are and why are they there, usually being accused of not being bona fide visitors.
All of this was done on a 3 to 1 vote – the one vote against being the only lot whose property has been devalued to provide increased value to the other 3 Lots owners.
I DID NOT HAVE A HOPE ON THIS MATTER. The Adjudicator sat on my application from March till December – he waited for the Enforcement Notice, still sat on it until the outcome of the DA Change application
THEN DISMISSED IT ON THE GROUNDS IT WAS OUT OF HIS JURISDICTION NOW THE COUNCIL HAD APPROVED THE DA PLANS!!!!!! But agreed the original CMS was illegal, and agreed that the “manner the special levy was raised was questionable” – but oh well !!!!!!
The COUNCIL state parking requirements being 1.5 for 3+ bedroom dwelling, plus 0.15 visitor. My car park access does not meet these figures – but the Council state “it is overall of the complex”, and maybe you should talk to the Body Corporate and request more “fair and reasonable” access!!!!!
CORRUPTIONS CORRUPTION CORRUPTION – Body Corporate should be abolished, the Commissioner in QLD, Chris Irons – pack your desk and save the tax payers – you are a waste of space and out of touch with reality !!!!!!
Yes, I am one very angry house owner who is being ripped off by my committee and government thinks that is ok
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