Strata FAQ – Parking

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To tow or not to tow

Most strata schemes experience the frustrations of illegal parking on common property. Too often large numbers of cars fight for the ultimate car park and are not bothered whether it is their allocated parking space or not.

This issue can literally drive an owners corporation crazy and can cause unnecessary rifts amongst neighbours.

What the updated law says you can do

The recent changes to NSW strata legislation provides a procedure for an owners corporation to move a vehicle which is left on common property if it is blocking an exit or entrance,or otherwise‘obstructs’the use of common property, provided a‘removal notice’is placed on or near the motor vehicle.The‘removal notice’must:

  • be no less than the size of an A4 piece of paper;
  • be placed in a position or be in a material so the content of the notice will not likely be detrimentally affected by weather;
  • describe the motor vehicle and state the date and time the notice was issued;
  • state the motor vehicle will be removed if it is not moved from the common property or so that it no longer obstructs common property before the date and time specified in the notice (being not earlier than 5 days after the notice was placed on or near the motor vehicle); and
  • specify contact details for a member of the strata committee or delegate in relation to the notice.
  • Essentially, if a‘removal notice’is correctly placed and the vehicle is not moved within the period stated in the notice, the owners corporation can have the vehicle moved:
  • to another place on common property or to the nearest place to which it may be lawfully moved; or
  • so it no longer blocks an exit or entrance or otherwise obstructs the use of common property.

But here’s the clencher… the law gives the owners corporation the power to move the vehicle to another place on common property but not necessarily to a public street or other property,which is exactly where you would want to move it.

Whilst the law says the car can be lawfully moved, this could practically be anywhere a vehicle can be parked, including unlimited parking on the street.

But guidance has not been provided and owners corporations face extensive risks if they choose to do this, such as:

  • The Local Government Act 1993 prohibits any person who takes possession of a vehicle from either refusing to release the vehicle or demanding payment to release the vehicle,i.e. the owners corporation cannot recover its costs if they tow a vehicle and would need to commence legal proceedings to do so.
  • If the owners corporation move or tow the vehicle it is taken to be the owner of the vehicle,i.e. they are liable for any damage caused to the vehicle and potentially any other related costs (e.g. damage to third party property or injury).
  • if the vehicle is unregistered, it is illegal to place such a vehicle on council property, like a public road,and the owners corporation can be effectively fined for dumping rubbish.

The new legislation therefore merely provides a short-term solution to the extent that the strata scheme is happy to have the vehicle remain on the common property.Regrettably, this doesn’t solve the owners corporation’s problem;how to get rid of the offending vehicle.


What an owners corporation can do

While every strata scheme is different,and you will need to find a solution that works best for your scheme, there are four possible ways to deal with illegal parking:

  1. If the offending vehicle is blocking common property, draw up a removal notice and if the vehicle is not moved, move it to another part of common property;
  2. The strata scheme can enter into an agreement with their Council for the Council to place signs and for rangers to take over the regulation of parking;
  3. The strata scheme may be able to introduce a by-law which allows the owners corporation to wheel clamp offending vehicles. As this type of by-law has yet to be tested in Courts,the owners corporation should ensure they get proper legal advice before introducing such a by-law; or
  4. Where the vehicle is likely to be an abandoned vehicle, there are laws which allow the Police or Council to seize or tow away a vehicle.
  5. The industry still awaits clarification of what is a lawful place,whether it be by the government,NSW Civil and Administrative Tribunal(NCAT)or the Courts. In the meantime,owners corporations need to be cautious of how they deal with illegally parked vehicles
Parking

The owners corporation can control parking on common property by using signage, security guards, key card systems or parking barriers.

Where owners can park

Owners and residents are only allowed to park in the spaces allocated to them.They cannot use parking for visitors or emergency vehicles. They should check that their lot entitlement includes a car space.

If there is no space, they can apply for a common property rights by-law which will allow them to park on common property.

Visitor parking

Signs should state how long visitors can park in the visitors’ spaces. If there are no signs, visitors can park there for a reasonable time.

Parking by-laws

Most strata schemes have by-laws on parking. If they are breached, penalties apply.

  1. The owners corporation serves a notice on an owner or occupier to comply with the by-law being breached.
  2. If the by-law is breached after this, the NSW Civil and Administrative Tribunal can order a person to pay a penalty of up to $1,100.
  3. If the by-law is breached again within 12 months, the penalty can double(up to $2,200
Parking: QLD

Illegal parking is a common angst that most strata owners have experienced at some stage.For committees, the legalities around towing an offending vehicle from common property is almost always a hot topic.

Before you pick up the phone to arrange for an offending vehicle to be removed, you should know that removing a vehicle from private property, including common property, needs to be done by an accredited driver and assistants using licensed tow trucks.

This means an order from the Commissioner for Body Corporate and Community Management is required before you or the Building Manager can call your local tow truck.

Tow-the-line and check your by-laws

If the Body Corporate has by-laws in place regarding parking restrictions on common property, then any parking signage needs to meet these new guidelines.

And if you intend on enforcing the parking by-laws, you need to know the facts before you proceed with towing:

  • Tow truck drivers and assistants must be accredited;
  • Tow trucks must be licensed; and
  • The Body Corporate must enter into a contract with the chosen towing company authorising the removal of the vehicles on the property.

If towing does occur:

  • $0  If the owner of the vehicle arrives back on the scene while the car is still being loaded,the car must be released to the owner without any charge;
  • <$150  If the owner of the vehicle arrives back on the scene while the vehicle is already secured on the truck and the truck is ready to drive off, the vehicle must be released to the owner immediately for a fee not exceeding $150;
  • $250  If the vehicle has been towed to the holding yard, the maximum fee for towing and holding for up to 72 hours inclusive is $250;
  • $250+ Beyond 72 hours the towing company can only charge a maximum of $25 a day for holding fees.

Contact your Community Manager for further details. We can advise your Body Corporate on how by-laws can be updated or changed, or new ones created to meet the needs of all lot owners.

NSW: Parking

Most strata schemes experience the frustrations of illegal parking on common property.This can literally drive an owners corporation crazy and can cause unnecessary rifts amongst neighbours.

What the updated law says you can do

A ‘removal notice’ can be placed on or near the motor vehicle.The‘removal notice’must:

  • be no less than the size of an A4 piece of paper;
  • be placed in a position or be in a material so the content of the notice will not likely be detrimentally affected by weather;
  • describe the motor vehicle and state the date and time the notice was issued;
  • state the motor vehicle will be removed if it is not moved from the common property or so that it no longer obstructs common property before the date and time specified in the notice (being not earlier than 5 days after the notice was placed on or near the motor vehicle); and
  • specify contact details for a member of the strata committee or delegate in relation to the notice.
  • Essentially, if a‘removal notice’is correctly placed and the vehicle is not moved within the period stated in the notice, the owners corporation can have the vehicle moved:
  • to another place on common property or to the nearest place to which it may be lawfully moved; or
  • so it no longer blocks an exit or entrance or otherwise obstructs the use of common property.

The law gives the owners corporation the power to move the vehicle to another place on  common property but not necessarily to a public street or other property

  • The Local Government Act 1993 prohibits any person who takes possession of a vehicle from either refusing to release the vehicle or demanding payment to release the vehicle,i.e.the owners corporation cannot recover its costs if they tow a vehicle and would need to commence legal proceedings to do so.
  • If the owners corporation move or tow the vehicle it is taken to be the owner of the vehicle,i.e. they are liable for any damage caused to the vehicle and potentially any other related costs (e.g. damage to third party property or injury).
  • If the vehicle is unregistered, it is illegal to place such a vehicle on council property, like a public road,and the owners corporation can be effectively fined for dumping rubbish.

What an owners corporation can do

While every strata scheme is different,and you will need to find a solution that works best for your scheme, there are four possible ways to deal with illegal parking:

  1. If the offending vehicle is blocking common property, draw up a removal notice and if the vehicle is not moved, move it to another part of common property;
  2. The strata scheme can enter into an agreement with their Council for the Council to place signs and for rangers to take over the regulation of parking;
  3. The strata scheme may be able to introduce a by-law which allows the owners corporation to wheel clamp offending vehicles. As this type of by-law has yet to be tested in Courts,the owners corporation should ensure they get proper legal advice before introducing such a by-law; or
  4. Where the vehicle is likely to be an abandoned vehicle, there are laws which allow the Police or Council to seize or tow away a vehicle.

Owners corporations need to be cautious of how they deal with illegally parked vehicles

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