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Topic
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I’m a tenant in a small unit block with underground parking and I have an allocated double garage. The other day I returned home from the supermarket in the late afternoon and was unable to park my vehicle in my garage as it was being blocked by another resident cleaning their car on common property. I was in a hurry so parked my vehicle in a vistor parking space so I could get the shopping inside with the intention of returning to move my car once I was able to gain access to my garage. It slipped my mind and I didn’t return to move the vehicle until the next morning. Upon returning to my vehicle I found a hand written no parking sign had been placed over the visitor parking sign and a hand written letter on my windscreen. The letter told me that I had parked in a no parking area and that people parking there previously had caused problems with the automatic gate. It also said my number plate had been recorded and would be passed on to strata management.
I’ve since received a letter from strata management informing me of my illegal use of visitor parking. Although I feel it is a little heavy handed I’m completely fine with their request that I refrain from using visitor parking in future as I’ve always parked in my garage and it was only due to unusual circumstances that I parked there but they are claiming that the automatic door was damaged due to the simple act of being parked in the vistor parking space and are seeking to pass on to me the costs associated with repairing the door. Just to clarify, no physical contact was made with the door or its opening mechanism by me or my car. The door also continued to operate normally for several days after my car had been removed from vistor parking.
My personal view is that although technically speaking I wasn’t supposed to be parking there as I’m a resident if that parking spot was known to have caused problems with the automatic gate in the past then it should have been signposted as a no parking area. I also find the link between my parking there and the problems with the gate as quite tenuous seeing as no phycial contact was made with any part of the door and it worked fine for several days after I moved my car.
I’m relatively new to all this strata business as this is my first apartment and I’ve had absolutely no issues up until now so any advice or opinions on this would be greatly appreciated.
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Replies
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gaven – as you’re new to Strata, I must advise you up-front that you’re not technically incorrect by using the visitors’ carspace, but rather that you’re in breach of one of the Plan’s By-Laws and are therefore legally incorrect, and liable to a penalty which you, by application from the Owners Corporation, could be issued with by the NSW Civil and Administrative Tribunal.
I should also advise that Owners Corporations have a legal responsibility to comply with the Conditions of their building’s Development Consent by keeping all designated visitors’ carspaces available for that purpose, and to properly maintain their Common Property; but more of that later.
It seems to me that the Owners Corporation (O/C) of your building and/or its Strata Manager takes a reasonable approach to addressing the improper use of its visitors’ carspaces, as it could have issued you with a formal Notice to Comply instead of a letter.
That said, the O/C is being a bit naughty by not attending to known problems with the operation of the automatic gate and to the apparently known unsuitability of one of its designated visitors’ carspaces.
You shouldn’t ignore the letter from the Strata Manager, and should immediately reply to them in an equally reasoned manner and copy your Property Manager (Rental Agent) including the relevant points, most of which are stated in your post including:
1) That you were unable to access your garage as it was being blocked by another resident cleaning their car;
2) That in order to unload your vehicle you had no option but to park in the visitors’ space, and that you intended to quickly return;
3) That you now understand that you were in breach of the Plan’s By-Laws, and that you haven’t in the past and won’t again offend in that way;
4) That you deny absolutely that the positioning of your vehicle could have, or did cause any damage to the automatic gate, and;
5) That you understand the O/C is clearly aware of past problems with the correct operation of its automatic gate and with the unsuitability of the visitors’ parking space, and;
6) That the O/C should (reasonably) be reminded of their responsibilities under the provisions of Sect 62 of the NSW Strata Schemes Management Act (1996) to ensure that all their visitors’ parking spaces are fit for use, and to properly repair and maintain their gate to ensure that it operates correctly.
A reciprocal style of reasonable response should get the O/C off your back, but if it fails then you’ll find Tenants NSW very helpful with such matters.
There is clearly an attempt to defraud Gaven83. I would follow Whale’s sound advice, but lodge a complaint with NCAT too. How many other tenants or owners for that matter, might these people have ripped off?
Fraud is a criminal offence, it isn’t a matter for NCAT.
gaven83 should follow Whale’s advice, calling the OC’s bluff is the best way to handle it and in most cases will defuse the situation.
@scotlandx said:
Fraud is a criminal offence, it isn’t a matter for NCAT.Hate to be pedantic … but, hell with it, I will. If it’s a criminal offence, shouldn’t it be a police matter?
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.
The police will probably refer him to OFT or NCAT as a first port of call. The SM is more than likely to be in on it too. It is very unusual for someone to be pulled up like this for a first offense. Either they are very intolerant, which doesn’t seem very likely judging by the existing situation with that parking spot, or they were waiting for just such a situation to pounce on some poor unsuspecting resident & get the repairs done for free.
So you say to the police, hey I got this letter about me parking in a visitor space and they claim I damaged the gate and are asking me to pay. What would the police do/say?
The police would tell you it is a private matter.
It is a private matter and should be dealt with as a private matter unless/until it reaches a certain point. As Whale says you write them a letter and make it very clear:
– I parked there because I was prevented from parking in my parking space
– I did not damage the gate and i will provide a statutory declaration to that effect
– I will not pay for any purported damage to the gate
– the OC has an obligation to maintain/repair common property and is responsible for fixing the gate.
Provide a copy of the letter to the managing agent for the property so they are in the loop.
The OC doesn’t have any evidence that gaven83 damaged the gate. In the absence of that, they don’t have a leg to stand on. In this case, it is to his advantage that he is a tenant, they can’t whack the bill on to him as an owner.
In other words, you tell them to go jump.
Well said Scotty….. and we were led down this conspiratorial path when Daphne hypothesised “there is clearly an attempt to defraud Gaven83”.
Lessons learnt in Strata: don’t go for the boots and all approach first-up – particularly when the other party hasn’t (yet), and when the issue is at hand is purely “they said he did, and he said he didn’t”.
As I originally suggested to Gaven, just deny any liability in the strongest possible and yet reasonable terms, and let the O/C prove otherwise (or as Scotty so eloquently put it – “tell them to go jump”).
@scotlandx said:
So you say to the police, hey I got this letter about me parking in a visitor space and they claim I damaged the gate and are asking me to pay. What would the police do/say?The police would tell you it is a private matter. It is a private matter and should be dealt with as a private matter unless/until it reaches a certain point.
I agree, 100 percent – I was just making the point that it isn’t really fraud, not that it IS a police matter.
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.
Dear Whale, I did refer to your initial posting as “sound advice” & urged gaven83 to follow it. However, my dictionary refers to fraud as “obtaining benefit by deception”. Should things go pear shaped, his landlord won’t be happy & he might lose his bond, which won’t look all that good to his future landlords. That said, I note the jocularity with which “fraud” has been treated in this thread. Who needs Nigerian scammers, when we’ve got our very own “strata scammers” to chortle about, no? I note also that the three of you have “gone to town’ on me & that is certainly not cricket.
@daphne diaphanous said:
I note also that the three of you have “gone to town’ on me & that is certainly not cricket.I thought I had made the “it’s not fraud” comment and the other two had had a swipe at ME.
I think we should let the whole fraud thing die out and I will take this opportunity to quote my new favourite piece of philosophy which I learned from that fount of all wisdom, the TV series “New Tricks”. It’s called Hanlon’s Razor and it goes something like: “Never attribute to malice anything that can just as easily be attributed to stupidity.”
I reckon that should be at the top of every page of the Strata Schemes Management Act and I would think that certainly applies to the Owners Corp trying to gouge damages to the gate from someone who has merely parked illegally.
It’s a scare tactic at the very worst. It ain’t fraud. And it ain’t cricket either.
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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