Flat Chat Strata Forum Parking Peeves Current Page

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  • #8807
    kiwipaul
    Flatchatter

      It’s tenants in our complex who generally ignore the parking bylaws and taking action against them is just a formality if they are breaking the rules, but then they just move out and we have to start all over again.

      But what about taking action against the owner of the property who allows his tenants to break the bylaw and does nothing about it. They would also be breaking the tennancy agreement and so the owner is well within his right to take action against them, but few do.

      Taking action against the owner would enable you to hit him with fines of up to $5,500 once you have a successfull ruling against him and this could be against different tenants because he is failing to ensure the bylaws are complied with.

      Not sure how long a ruling is valid for in NSW (QLD it’s 6 years and fines are max $40,000).

      Just wondered if this is feasable as I can find no previous ruling about this online (in QLD or NSW)

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    • #19300
      Jimmy-T
      Keymaster

        There has been a case in Sydney where a District Court issued a noise abatement order against the owners of an apartment that had noisy tenants in it.  The principle applied was that the owners knew about the problem, had the ability to do something about it (because the tenants were in breach of their lease by being breach of the by-laws) and had chosen not to do so.

        I have never heard of similar ‘stretch’ being used in strata law but the mechanism is there, I believe.

        Firstly, you have the question of who has to comply with By-laws and that’s overed in section 44:

        44 Who is required to comply with the by-laws?

        (1)  The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:

        (a)  had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and

        (b)  contained mutual covenants to observe and perform all the provisions of the by-laws.

        (2)  There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.

        And then you have the owners responsibility to make sure their lot isn’t used in such away as to cause a nuisance or hazard.

        117  Owners, occupiers and other persons not to create nuisance

        (1)  An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

        (a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not) …

        The question is, does rogue parking qualify as a “nuisance”, given that the word has a different meaning than merely being something that’s annoying? If it does and tenants were hit with a Notice to Comply for rogue parking and that was upheld at the CTTT adjudication then the landlords might just be in breach for not invoking their legal right to evict their tenants for breaching by-laws.  It may seem like a wrong way round a simple problem but for some tenants, paying a $200 fine for three months free parking (the average time it takes to go from a complint to a decision at the CTTT) is a bargain.

        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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