Flat Chat Strata Forum Parking Peeves Current Page

  • This topic has 22 replies, 7 voices, and was last updated 12 years ago by .
  • Creator
    Topic
  • #8641

    I own an apartment in a luxury high-rise in the Parramatta CBD. My apartment came with car spaces that consisted of 2 adjacent “disabled” (extra wide) spaces. This capacity was pivotal in choosing the apartment I purchased over a similar apartment.  Some months ago the OC decided to remove the disabled signage as it was no longer required. The spaces are on title to my apartment and are delineated by painted lines. Adjoining the spaces on one side is a storage cage that is also on title to my apartment. There is no right of access over the spaces and no other common property adjacent, other than walls. We own 2 cars. There is no visitor parking in the building and virtually none in the surrounding streets. When we have visitors we park 3 cars in our space as they fit comfortably without encroaching on any other space or on common property. The OC in our building can be very “active” about the parking area and have pursued owners who park boats or trailers or anything but cars or motor bikes in their spaces. Are we entitled to use our space for 3 cars?  What issues are in play here?

Viewing 15 replies - 1 through 15 (of 22 total)
  • Author
    Replies
  • #17593
    Whale
    Flatchatter

      Lyn – Whilst I’m surprised that your Building was approved by Council without visitors’ carspaces, and that the carspaces forming part of your Lot were originally signposted as “disabled”, those carspaces are yours and provided your Plan has no Special By-Laws in place that restrict the types and/or numbers of vehicles that can be placed there (specifically or generally within the carpark), your carspaces can be used by you in the manner you have so accurately described. 

      #17616

      Lynn – i’m in a similar bind!

       

      Whale – I was wondering what your opinion would be if there is a by-law in force that does restrict the number of vehicles applicable to the carspace, but this by-law contradicts the strata plan (ie latter does not restrict number of vehicles, direction in which they are to be parked, or specify lines dividing carspace into two separate carspaces).  Which has precedence?  ie by-laws or strata plan?

       

      I’m in the situation where there are painted lines dividing my carspace, but the strata plan shows my carspace as one continuous lot, and doesn’t state that only 2 cars can be parked there, nor does it specify in which direction they can be parked (the carspace is open on two sides so i can physically park vehicles perpendicular or parallel in the carspace).  the body corporate have registered a by-law prohibiting more than two vehicles being parked in this carspace, even if the vehicles are all within the carspace boundary lines.

      #17620
      Whale
      Flatchatter

        Mikey – having just read you other post on this subject, I’m sorry that I can’t give you any joy because the Strata Plan merely shows the location and boundaries of the area (m2) that forms part of your Lot, whereas the Plan’s Special By-Law prescribes how that area may be used, and that has precedence.

        I’ll leave others to respond to your other post, but you need to consider that Orders can only be issued under Cl 144 if you’ve been denied reasonable use and enjoyment of your caspaces, and that’s subjective. 

        #17625

        Hi Whale – thanks for your comments.  :-)

        And what about s157 of the SSMA for repealing by-laws that contradict the original strata plan and are not in the interests of all owners? s144 i thought applied only to common property…

        And I believe that s158 may also be used to request exclusive use of common property.  Unlike s144 where the onus of proof is on the lot owner to be ‘reasonable’, under s158 it falls to the body corporate to show they are not being ‘unreasonable’.  but i’m no expert and i welcome correction on these two statements i’ve just made …

         

        When i bought into the complex, there were no special by-laws in place and i acted based on what i read on the strata plan; so, if i understand what you are saying, a person can buy based on what is in the strata plan and then this can be over-ridden by the body corporate via by-laws.

        #17635
        Whale
        Flatchatter

          Mikey – I can appreciate your position, but firstly there’s no contradiction, and secondly you need to read the entire sections of the Act not just the bits that suit your personally preferred outcome, which other Owners (who together with yourself make up the Owners Corporation) may not regard as being in their best interests.

          With regard to the Special By-Law that’s causing you grief, I note that you said it was put in place after you purchased your Lot; where were you when the Meeting was held and the vote taken?

          On positive note though, your post states that that Special By-Law applied only to your Lot. If that’s correct and depending upon the layout of your Plan’s carpark, you may have a opportunity to argue for that to be overturned on the ground that it applies only to you, only restricts only you etc etc.

          As has often been said on this Forum though, and as I’ve personally experienced, the outcome of the CTTT’s processes are is almost akin to winning a prize on a a chocolate wheel; they’re almost entirely up to chance.

          #17640

          Hi Whale,

          Thanks again for the feedback :-)   Let’s see how all this pans out at adjudication!

          #17644
          kiwipaul
          Flatchatter

            Measure the size of your car park, and then measure the size of other car parks in the same complex. If your car park has dimensions for 3 standard size car parks I cannot see how they can object.

            Also check what the council regulations are for car parking space (might be less than your neighbors size of car park), and if 3 council parking spaces fit within your parking area again they would have trouble objecting.

            I don’t see how they can create a bylaw to discriminate against you if you are using the parking space for it’s intended purpose.

            If you go to adjudication take photos of any items others are leaving in their parking spaces (rubbish bins, ladders, etc) to show that the EC are being unreasonable.

            I don’t understand why you had disabled signs above your parking as this seems to indicate they were for disabled people and so common property. The developer hasn’t pulled a fast one has he and sold common property to residents against council regulations.

            #17647
            Jimmy-T
            Keymaster

              Can we just clarify – is this parking space a separate lot. part of your lot or part of Common property over which you have legitimate (and by that I mean documented) exclusive use?

              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.
              #17666
              Whale
              Flatchatter

                Mickey hasn’t clarified ownership of the carspaces but from what I’ve read on his previous posts on the topic, that by the way go back 12 months, I’m almost certain they’re part of his Lot.

                To answer Kiwipaul’s query about the carspace dimensions, Mikey’s other posts about his 3 vehicles “partially encroaching” mentions that one vehicle extends onto the Common Property by 1.7m over a length of 1m and the other by 0.3m over a length of 1.76m.

                It reads to me like Mikey’s been doing the wrong thing for at least 12 months, and that’s likely upset the E/C et al to such an extent that they’re now not interested in his overtures about exclusive use, payment, or anything else.

                Hopefully we’ll hear back from him after his next CTTT appearance for adjudication.

                #17673

                Hi Whale – I did not reply to kiwipaul because I thought his questions were directed towards Lyn Thorpe – she is the one with the two disabled spaces :-)

                 

                However, I will respond to your comment about the body corporate I’m part of who are allegedly so “upset” they won’t consider “(my) overtures about exclusive use, payment, or anything else.”

                 

                I will assume you are not part of my body corporate.  12 months ago, I did write to the strata manager requesting written permission to park encroaching on common property, and offered to pay a market value for the encroachment. 

                These requests were met with silence.  No discussion or vote has ever occured at any AGMs, EGMs or ECMs during that time.  Instead the body corporate has persisted in pursuing legal representation rather than engage in dialogue with me.

                The common property in question (13M X 13M) is shared by 3 lot owners.

                I find at the first round of adjudication that one of these lot owners alleges that she has difficulty parking her car due to my encroachment. 

                I tender photographic evidence showing that this is an untruth.  My parking encroachment in no way affects her access to her carspace, whether backing in or going in head-first.  If she were to come anywhere near my vehicles, she would be in such a position she could not even access her carspace, let alone exit the common property without doing another three point turn.

                The other lot owner who also uses this common property has said to me she is also completely unaffected by my parking encroachment, but being new to the block, and already engaged in her own dispute with the body corporate (now solved) she is hesitant to exacerbate matters further as she is in the midst of a renovation.

                I assume that if a resident were to ask for written permission, offer to pay rent, and be completely ignored, in the last resort if that resident were to ask for a by-law (allowing parking encroachment onto common property) to be implemented by an adjudicator under s158, it could be argued that the body corporate has acted “unreasonably”.

                Just because the body corporate is “upset”, this does not give them the right to ignore written requests et.al. and claim they are “not interested”. 

                I know from reading in the press that there are calls to limit the number of residents in a strata bedroom.  I understand that there are fire hazard and hygene issues at stake. 

                I believe that parking 3 cars in a 2 car space do not countenance these same issues. 

                Someone in the block has said my parking ‘looks messy’.  What does this mean?  The cars are parked straight and are immaculate.

                And then … these same people in the block regularly park across their own yellow lines, store fertiliser bags and a ladder in their space etc.  and none of these people are pulled up on their behaviour.  I for one dont care – they are doing no harm to anyone else in the block so its noone’s business but their own.  :-)

                If I am not causing anyone any harm, and I am willing to contribute financially towards the body corporate for the parking encroachment, what are the body corporate achieving in fighting me except spending a whole bundle on lawyer’s fees (which I dont believe is an achievement)?  I wonder if this same lawyer has also warned them that whatever orders the adjudicator makes has a validity of only two years from date of service …

                I am deriving utility and benefiting from the parking arrangement, and the body corporate is not losing anything material, objective, significant or quantifiable, and instead stands to benefit if they accept payment of a rental. 

                #17676

                In another post we talked about parking allocation being part of a DA process and is dictated by council (usually to a lot number/bedroom and use formula): even if the OC wished to engage your point of view they would need to seek approval from council. Additionally, if the car parking is underground, the BCA then requires that the car park be adequately ventilated: that one extra car could infact cause significants costs if mechanical ventilation needs to be upgraded or installed. (The BCA also uses a formula to dictate what is needed). There is also the impact to your buildings’ insurance and even fire certificate. For your OC to consider your request to ratify a misuse of parking, they need to cover themselves and that involves council searches and consultants(BCA and fire), none of which is free: irrespective of a financial offer, if they reject (either because they want to or have to) then the OC is still out of pocket merely by engaging council/consultants and the like.

                 

                You advised that you are in Sydney City, and, even though your scheme dates from the 70’s, Sydney council has an active policy of discouraging car spaces, so is unlikely to retrospectively approve 3 car spaces for a lot that has 2 car spaces.

                 

                All of that aside, it appears that you parked first, and asked later, which is probably not the best way of going about things. You may have had more had more luck in getting the permission had the OC not had cause to instigate action.

                 

                Granted, from what you describe, the OC have ignored the opportunity to enter into a dialogue of compromise but then again they actually aren’t obliged to: common property is not terra nullius to be claimed, no matter how innocuous the action of misuse or encroachment.

                #17677
                Whale
                Flatchatter

                  Mikey – this is all becoming a little confusing, particularly as you’ve posted substantially the same discussions on two (2) separate forums; your prerogative of course.

                  You mentioned in an earlier post that your request for exclusive use of the Common Property area that your vehicles encroach upon was met with a lot of discussion at the AGM, and yet now you state that “no discussion or vote has ever occured (sic) at any AGMs, EGMs or ECMs…”. You also mentioned in other posts that you were “unambiguously breaking the by-law”, and that “there was a lot of name calling at the AGM…. all directed at me”; so I concluded (a) that you’d been doing the wrong thing and (b) that members of the Owners Corporation and/or the Executive Committee were irritated by the whole matter and somewhat disinclined to consider it any further; was I wrong?

                  I’m most definitely not a member of your Plan’s Owners Corporation (O/C) or Executive Committee (E/C), but if I were I can assure you that the Motion to consider your request for exclusive use would have been properly discussed at the AGM, a vote would have been taken one way or the other, that Resolution would have been recorded in the Minutes of the Meeting, and if that (Resolution) was against the Motion it would have included words to the effect any further breaches of the Plan’s Special Parking By-Law by you would result in the O/C immediately making an Application for Interim Orders under Sect 170.

                  This whole matter is probably beyond resolution in the absence of assistance (and I use that term cautiously) by the CTTT, but I’d give it one last try prior to Adjudication by rewording your past Motion as may be appropriate given comments on FlatChat, and your knowledge of both what’s transpired since (the AGM) and the current situation, and submit that to the E/C Secretary for  urgent consideration at a General Meeting. Can’t do any harm! 

                  #17684

                  Hi mattb and Whale, thanks again for your comments – they are valued and do shed more perspective on the whole matter for me.  🙂

                  Hi mattb, if the OC chooses not to enter into dialogue, does this not partially constitute ”unreasonable” behaviour on their behalf within s158?  Surely an OC has the obligation (fiduciary duty?) to respond to all written requests made to them in good faith, and not use as their first response engagement of legal representation.

                  Hi Whale, I do not claim to be without blame in the whole matter.  I could have handled things alot better …

                  Nevertheless, I still insist that my request for written permission to park on common property and the offer to pay for the encroachment both have not been discussed at past meetings.  

                  I was stopped mid-sentence by one member of the EC in a meeting when I started to say “would you consider granting me written permission if i paid a rental …”  I could have chosen to persist and call for a vote there and then, but it was only an ECM, and the atmosphere was getting hostile and I risked being called worse names than The Fuhrer. :-(

                  Could the strata manager have intervened and called for vote then?  He chose silence.  I don’t blame him – he knows on which side his bread is buttered.  

                  And the rest of the participants at the meeting were pretty much quiet (the lady next to me kept looking at her feet) because they all knew a verbal explosion was about to occur from this particular EC member if I pushed any further.  They’d seen it before.

                  There are no meeting minutes in existence making specific reference to any vote concerning the request for written permission or offer to pay rent.  There are however minutes showing votes to issue a notice to comply, engage legal representation etc.  

                  This does not constitute a ‘proper discussion’ on exclusive use of the common property because written permission and rental were specifically excluded from discussion by a member of the EC.  

                  I’ve now had three (3!) lot owners express surprise (and particularly and ironically from the lot owner who without foundation alleges I am reducing her access to her carspace, and has been present at all meetings) that I am willing to pay not only rent but have it retrospectively applied to date of first encroachment.  Go figure!

                  #17695
                  scotlandx
                  Strataguru

                    It’s not clear from what you have said, but in relation to a vote at the EC, unless it was on the agenda there couldn’t be a vote.  It is a bit confusing because you have said you wrote to them, in which case there may have been something on the agenda, but even if there was, it would have had to have been pretty clear, i.e. a resolution to permit you to do what you want to do.  The EC cannot vote on something that is not on the agenda.  It is up to you to send a resolution to the EC secretary for inclusion on the agenda.  If you did that and it wasn’t included in the agenda, that is a separate issue.

                    Setting that aside I am not sure that the EC would have the power to resolve to grant you that permission, because effectively you are asking to be granted exclusive use of a part of the common property, and that is a matter for the OC to consider at a general meeting.

                    #17702

                    Hi scotlandx – thanks for the comment :-) – there is an EGM coming up in a few days and I’ve asked for a by-law for exclusive use of common property to be voted on – the by-law also includes a proviso that my parking encroachment causes no increased risk, obstruction, harm or interference to other lot users, and provides for payment of a market value rental if the body corporate deems this appropriate.

                    I hope that asking the body corporate to vote on a by-law will be less ambiguous than simply seeking written permission from them.  Afterall, if i contravene my own by-law, i am now accountable to the CTTT.

                  Viewing 15 replies - 1 through 15 (of 22 total)
                  • You must be logged in to reply to this topic.

                  Flat Chat Strata Forum Parking Peeves Current Page