Subletting car space

As with so many issues, it all comes down to your by-laws.

Our building has a by-law that specifically forbids letting car spaces to outsiders – but we know it goes on.

It’s not an issue because it hasn’t caused a major problem (so far) but it does leave us open to abuse if, for instance, the person with the key allows their mates to park illegally when they are all going out somewhere together.

The fundamental issue is the security of the building and how badly it is compromised by outsiders having keys.  A person who is not an official tenant does not have to abide by any by-laws, including restrictions on parking in visitor spaces, for instance.

If you don’t have a by-law, you are wide open to anyone and everyone coming into your car park and possibly your common areas and you have absolutely no control over their behaviour.

If you do have a by-law, you don’t have to use it until there is a problem.  Then you dust it off and let it do its job by sending a notice to comply to the offending car space lessor.

Here is an example of a couple of clauses in a fairly typical by-law:

No part of any car space may be used by persons who are not an owner or tenant of that lot or a visitor of a resident or owner of a Lot.  

You must not
(a) grant any lease or licence; or

(b) sell, trade or loan any part of any Lot intended for use as a car space other than to an owner, tenant or resident.

Some buildings have even tighter restrictions that say the car space can only be used by the resident or their visitors, and not the owner who is not a resident. This is to prevent owners “double-dipping” by holding on to a key so that both they and their tenants use common property facilities. 

Might I also suggest you check the Determination of Development Consent on your building.  Ours has a Section 88B and when I obtained a copy (very small cost, online, super fast) our Section 88B clearly sets out who can sublet car spaces and to whom i.e., those owners with car spaces attached to their Lots can provide parking for their visitors or they can sublet the space/s but only to residents of the building.

Any breaches of the Section 88B – ie the commercial letting of car spaces to outsides – would, one imagine, see a claim against the building’s Insurance Policy rendered void were a major incident happen involving a non-compliant letting of the car space: someone being hit and injured by an unauthorised vehicle while on common property or such a vehicle bursting into flames, as did a vehicle a couple of weeks ago parked immediately outside my place of work.

(Our Strata fails again. Our EC/SMA refuse to simply write to Owners confirming who they may rent their spaces to, plus they refuse to audit the handing out of remote control/access devices and monitor the vehicles/scooters etc entering our property daily.)

This should all be pretty straight forward though.

In the absence of any other instrument, you could have a by-law that says, for instance, that  residents must not do anything to undermine the security of common property, specifically by providing keys to the building to people who are not bona fide visitors, registered tenants or permanent residents of the building. That way you are not cutting across Section 49 which relates to lots rather than common property.

It’s worth having a look at Item 19 on THIS TOPIC in which a special counsel quotes considerable case law and concludes that while you may not create by-law that triggers the Section 49 clause, you can pass a by-law that has the same effect

But is renting a car space actually sub-letting? 

I’ve been told by state RTA authorities that renting a car space has nothing to do with residential tenancy agreements.  Because it’s not actually a residence.

They can be wrong, I know!