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There’s a lot of confusion about whether or not we can clamp illegally parked cars. Beverley Hoskinson-Green of our sponsors Makinson & d’Apice, give us the definitive answer – even if it is, yes and no.
The way it works is this:
- The Local Government Act (LGA) prohibits (in an obscure part – sections 651A, 651B and 651C – I’d call that buried, wouldn’t you?) wheel-clamping and towing of vehicles without the consent of the owner.
- The by-laws for a strata scheme bind the owners corporation, owners and occupiers (and mortgagees, covenant chargees in possession, lessees etc etc) to the same extent as if they had been signed and sealed by each of them and the by-laws contained mutual covenants to observe and perform all of their provisions (section 44(1) of the Strata Schemes Management Act (SSMA)).
- Those words (signed and sealed) mean that the by-laws operate as deed and the obligations in the by-laws operate as a covenant on the part of the owners corporation, owners and occupiers (and mortgagees, lessees etc etc) to observe and perform their obligations arising under them.
- A covenant is an agreement, promise or pledge on the part of one person to do something or observe or be bound by something.
- As a result, a properly worded by-law providing for the wheel-clamping or towing of a vehicle owned by an owner, lessee or occupier (or any mortgagee, etc etc) that is parked on the common property in breach of the by-laws operates as a consent to that wheel-clamping or towing for the purposes of the LGA.
- The problem with the by-law approach is that, while section 44 of the SSMA provides that by-laws bind owners corporations, owners, occupiers and lessees, it does not include any reference to visitors.
- So the tradesman who parks his ute in the driveway, the commuter who parks in visitor parking and all the other sundry visitors to the strata scheme who leave their vehicles littered around the common property can’t be lawfully wheel-clamped in reliance on a wheel-clamping by-law.
There are other problems with the by-law approach.
First, it is very difficult for owners corporations to get a towing company to tow a vehicle away in reliance on the by-law. They have it firmly fixed in their collective minds that private towing of vehicles without a direction from the owner of that vehicle is illegal and that they will be fined if they do it. Explaining the fine points of the law of deeds, covenants and by-laws to tow truck operators tends to fall on deaf ears.
Secondly, while an owners corporation can itself affix a wheel-clamp to an offending vehicle, when it comes time to remove it, most members of the executive committee or a building manager, caretaker or the like don’t want to deal with a very irate illegal parker. Rather, it would be best if a security company is hired to both affix the wheel-clamp and attend to its removal. The problem with that is that you run into the same issue as with the towing companies – convincing them that wheel-clamping in accordance with the by-law is lawful.
Thirdly, there is a technical issue arising under the LGA provisions which prohibits the wheel-clamping of “a vehicle owned by any other person …except with the consent of that other person”, which gives rise to questions about the ownership of the actual vehicle (in addition to the issue as to whether the vehicle was parked unlawfully by an owner or occupier of a lot in the strata scheme). There are arguments about the implied consent of an actual owner which I won’t go into here. But it is another issue that makes the by-law approach less than satisfactory.
Now, having said all that, I act for a very large strata scheme at St Leonards that is quite close to St Leonards railway station. They have had significant problems with commuters using their car park to “park and ride” and with residents using visitor parking as their second car space. The owners corporation adopted a wheel-clamping by-law I drafted over a year ago and the building manager has wheel-clamped a very small number of vehicles. The effect has been to stop the illegal parking both by the trespassing commuters and by residents parking in breach of the by-laws.
Beverley Hoskinson-Green
Partner l Makinson & d’Apice, Lawyers
Level 12, 135 King Street, Sydney NSW 2000
Website http://www.makdap.com.au
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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Hi All,
Slightly off subject but related, have had resident using visitor parking for around 8 months. 3 letters 3 phone calls, about to start CTTT action when I presented JTs ‘you are parked illegally’ sticker at a meeting. It was approved and we used, did have to post it on the car a number of times but it seems to have worked! Thanks JT. Saves us the time and hassle of the kangaroo court.
Big Cheers CBF
So a bylaw would address 90% of the problem as most offenders are residents of the complexes (I know their are exceptions).
But how to word the bylaw. Can someone who lives in a building with a towaway or wheel clamping bylaw post a copy of that particular bylaw (I don’t mind which state it is from as it should apply the same anywhere) so we can see what it entalis.
At my place of employment, the staff car park has a sign which states that all unauthorized cars parked there will be towed at owners expense. Each employee has a numbered sticker on their car that is registered to that employee. The car park has spot checks for unauthorized cars. Employees who abuse the parking loose access to the carpark.
So if it cave done for a company on their private property, why not strata? Have a big sign at eqch parking area clearly explaining that their car will be towed and tht they will pay for that. Each resident gets a sticker for their car. They have to register the plate numbers, make and model. Those with one garage/car spot gets to register one car, get one sticker, no matter how many cars they have. An owner with two garages can register two cars if they have them. If they only own one car they can only have one sticker, to stop anyone handing out stickers to someone else such as a friend who needs parking for the day.
But then there is the matter of the by law. As I have said before, as the majority of residents abuse or use the visitors car spots in my complex so there would be no way to get a by law passed.
Kiwipaul – Unless clamping could be broadly covered under the definition of “distrain” (and I don’t believe it can) then the following, provided to me by a past Owner and of unknown origin, seems to comply with the advice so clearly provided by Beverley Hoskinson-Green of Makinson & d’Apice, but I suppose a clamping provision could be easily added by an O/C after appropriate legal advice:
“1 An Owner or Occupier of a lot must not park or stand any motor bike, boat, trailer, or any motor vehicle (“vehicle”) on common property except with the prior written approval of the Owners Corporation.
2 The Owners Corporation shall have the following powers and authorities, in addition to those conferred upon it by the Strata Schemes Management Act 1996 and the By-laws:-
a) The power to do one or more of the following in respect of a vehicle, the property of an owner or occupier of a Lot, parked upon Common Property contrary to the By-Laws;
(i) the power to remove the vehicle from the parcel;
(ii) the power to move the vehicle within the parcel;
(iii) the power to distrain the vehicle by such reasonable means as the Owners Corporation determines; and
(iv) the power to affix a sign to the vehicle.
b) the power to recover the costs of exercising any power pursuant to this by-law from that owner or occupier as a debt in any court of competent jurisdiction”.We didn’t adopt the above but opted instead for a Special By-Law (SBL) that, after a vehicle is found to be on Common Property or on a carspace other than the one allocated to the Lot being occupied by or visited by the vehicle’s owner on three (3) occasions, and where a Notice has been placed on the vehicle on each of those occasions, permits the Owners Corporation to then issue a “parking fee not exceeding $500 per day or part thereof” to that vehicle’s owner for payment, and in default to the legal occupant of the Lot where that vehicle’s owner was an invitee.
Even with the detailed preamble to our SBL I know that there are a few loopholes, but thankfully our friendly postcard size “Notices” have mostly done the job, so our $25 Fees have been few and have always been paid by both tenants and and Owners.
Thanks Whale that looks good.
I didn’t realise that Strata COULD impose fines for parking breaches, that could be another way to go.
Kiwipaul – our advice was that we couldn’t issue fines, and that’s why it’s called a “parking fee” in our SBL – even though the invoice looks somewhat like a “bluey”.
It may have been obvious, but the reason for the SBL permitting a $500 / day fee was simply to save us amending the prescribed amount as time progresses and the value of the dollar decreases; we use the “not exceeding” provisions to raise $25 / day fees which, as I said, have always been paid despite protests from a few bush lawyers.
I haven’t posted our SBL as I couldn’t find my original draft (docx) on my cloud-based hard-drive and the pdf version that I could find won’t let me cut and paste (?). If you or others are interested, I’ll try to work around the pdf and copy it here when I get time. Just let me know.
A company that I worked with some time ago had a simple solution to anyone that illegally used our well marked private car park. An A4 sheet of adhesive label stock with a polite notice telling them that they were parked illegally would be placed in the centre of the drivers side of the windscreen.
It was quite interesting watching them scraping it off before they could leave. Never came back though!!
Hi All, JT,
Was listening to JT on 702 the other day re parking and what I heard was you cannot touch a persons car at all re illegal parking. So am I to think the stickers I downloaded from this site and used are illegal? Bugger if they are as they work a treat!
Anyway, let me know if I should be posting this to a different topic.
Cheers, CBF
Jimmy,
Read your SMH article with great interest.
How would this, say, apply to visitors parking illegally in a carpark (e.g. overstaying)? Since they aren’t owners or renters, are they then subject to the same by-laws? (i.e., is their permission given if we have a sign up?)
Thanks.
So how exactly are you supposed to find out whose visitor it really is? Camp out in front of the visitor’s car and not let them drive it away until they’ve told you who they’re visiting (and hope they tell the truth)?
And who are you supposed to fine for rogue parkers who aren’t visitors, such as afore-mentioned commuters etc.?
Somebody’s been reading our posts, because this Media Release was issued yesterday by the NSW Office of Fair Trading.
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