Strata Committee won’t stop illegal parking

If you have a record that you have asked the question and it has been rebuffed or ignored, I would initiate mediation proceedings at Fair Trading with a view to taking the strata committee to NCAT seeking orders under Section 232(2) Failure to exercise a function (below).

I would also offer some solutions, such as an audit or change of code for garage keys, the installation of lockable bollards and a request to investigate and cost alternative arrangements.

If you install bollards and residents each have a universal key, then only genuine visitors can park there when residents are at home.  You might also need security cameras to monitor the spaces to make sure residents are doing the right thing and locking up when their visitors have left.

Regarding mediation, it’s free and just making an application might be enough of a warning shot to get things moving.

Section 232 (2)

Failure to exercise a function 

For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—

(a)  it decides not to exercise the function, or

I agree with Jimmy about going to FT.

As someone who has recently been to FT (a free service), twice and then at NCAT ($216 to apply from memory), may I suggest you prepare for Mediation at FT as though you were preparing for NCAT: list your grievance(s); point out to what sections of the SSMA you are focusing on; aggregate your evidence and spell out what outcome you seek.

Doing this will endear yourself to the Mediator who no doubt sees her or his share of unprepared or under-prepared owners who no doubt have legitimate concerns but are unfocused in their submission. The lack of focus I believe hurts their chances both at FT and NCAT.

Best of luck!

Austman wrote:

all other solutions are pretty much unworkable, illegal, temporary or not affordable.

I know plenty of strata schemes that adapt their by-laws and practises to suit their particular circumstances. Like the one that periodically parks a committee member’s car, with wheel clamp attached,  under the sign that says illegally parked cars will be clamped.

Or the one that puts up a sign warning drivers that illegally parked cars have been vandalised and the oweners corp takes not resposibility etc etc.

Neither of these signs is legal but who’s going to call the cops (or Fair Trading or whoever). When you consider how hard it is to get owners corps to follow the law, how hard will it be to compel them to limit themselves to the ‘black letter’ of strata laws.

Yes, you’re right, the law is deeply flawed, but that doesn’t mean you have to give up. All it takes is a little imagination and a desire to actually do something.

• This reply was modified 2 years, 8 months ago by .

This is a question I have been banging on about for years now.  Any building that has visitor parking should have a by-law that defines what a visitor is for the purposes of the use of said parking. The by-law you would write would be based on the best use for the residents of your block – i.e. one-size-fits-all will not work here.

If a block has a number of elderly people in it, you might want to make the hours in which a visitor’s vehicle is parked quite generous.  If you have a lot of younger people who invite their friends to come and stay for the weekend, taking up all the parking, then you would make it more restrictive.

However, in this case you clearly have Buckley’s chance of getting a reasonable by-law passed.

But it’s as plain as day that this owner is getting a commercial benefit from letting his workers use visitor parking free of charge (and at a notional cost to the other owners).

I would be off to Fair Trading seeking mediation as a precursor to having the decision overturned through orders from NCAT.

I would also tell the local council that the terms of their Development Approval have been breached as what they agreed would be visitor parking is now used for commercial purposes.

And I would put forward a reasonable definition of what constitutes visitor parking as a by-law for approval at your next AGM.  I’d point out that if it’s rejected out of hand, they can expect another trip to the Tribunal.

This owner is having a lend and the fact that he has enough cronies on the committee to support his parking grab doesn’t make it right, morally or legally.  He’s a parking thief – plain and simple – and any disruption to the sense of community in the scheme is down to him, not you.

Ziggy wrote:

BTW the Strata Committee refused mediation re the issue some months ago so it could go straight to NCAT. I don’t like my chances there either.

I don’t see why.  If the committee member has supplied his employees with parking permission and remote keys for the gates, it’s pretty clear that he is using common property for his own commercial benefit without properly compensating the owners corp for its use.

This is not a simple case of someone allowing an outsider to use common property as a matter of convenience.  This committee member is using their position to exert undue influence on the committee for financial gain.

And don’t forget to call the council.  This must surely be a breach of the block’s DA.

• This reply was modified 2 years, 1 month ago by .

S wrote:

… you could define visitor as something like this: “Visitor” means an invitee, caller, tradesperson and/or contractor and/or an employee of an Owner or Occupier of a Lot.

I don’t think that’s enough.  What about the romantic partner of a resident who stays over for a weekend or even a week or two?  They would be “invitees”.  As I’ve said already, one-size-fits-all won’t work in this regard.  You have to look at the legitimate usage and frequent abuses of visitor parking in your scheme and draw up a by-law accordingly.

Ziggy wrote:

Firstly, what do you mean Jimmy by properly compensating the owners corp for its use? Can the OC legally agree to lease a visitor spot?

No. But allowing commercial enterprises to use the parking spots as if they had leased them is to deny owners’ legitimate visitors the opportunity to use them, which has a value.

Secondly, the Strata Manager agreed that these particular workers were visitors! Not much help there. And, as we are trying to stop employees from parking here, they would, theoretically, be excluded. But thanks for your comment S.

The strata manager is entitled to their opinion and, in the absence of a by-law defining what a visitor is, their point of view is, on the face of it, as valid as anyone else’s.  But it’s not strata law and the strata manager clearly knows on what side his or her bread is buttered.

Just to be clear, there is a difference between a worker coming to the block to perform a task – such as a plumber or electrician – and someone who is an employee of a resident coming as part of their duties.

For some enlightenment on this, we can look to Queensland where Hynes Legal has, in this newsletter, addressed this situation:

This [Tribunal case] was one where employees of the resident manager were using the visitor car parks.

“I consider a ‘visitor’ would include anyone who is not an occupier of a lot, but who is genuinely visiting a lot or the scheme. I do not consider this is limited to residential or non-commercial visits. While a visitor may be a friend or family member visiting a tenant, they may also be a contractor such as an electrician visiting the scheme to do work.

I would consider the employees of the resident manager to be occupiers to the extent that they predominantly or regularly work at the building (as distinct from, for example, an employee who is based elsewhere but visits for an ad hoc meeting). However, a cleaning contractor attending to clean one or more lots would arguably fall within the designation of a visitor.”

Our takeaway: a visitor could be a family member, friend or the electrician appearing as a one-off, but permanent or regular attendees may well not be visitors.

Here’s another view, this time from a strata manager responding to a very similar query on Lookupstrata’s website.

The commercial lot owner is welcome to have his staff park in his own car space(s) but not visitor parking, in our view, because his staff are not bona fide visitors – they are the employees of his business.

The Oxford Dictionary defines visitor as “A person visiting someone or somewhere, especially socially or as a tourist”. It is difficult to see how an employee of a business within a strata scheme could be construed as a bona fide “visitor” to it.

So there you are – two opinions that employees are not visitors, which suggests that, at the very least, this is worth challenging at Fair Trading and NCAT.