ACT: Q&A Breaching Strata Parking Rules. Can You Be Towed?

This ACT article is about breaching strata rules. What is a Rule Infringement Notice?

Table of Contents:

• QUESTION: For visitor parking in a unit plan, when does a long-term visitor become a resident? Can the owners corporation include a definition of a visitor in their rules?
• QUESTION: I rent a unit. A car has been parked in my space for over a month. The strata manager will not assist. My property agent suggested I have the car towed. Is this the right action to take?
• QUESTION: Our complex constantly deals with unauthorised parking and trolleys left on common property. How do we resolve this ongoing problem?
• QUESTION: We purchased a unit with two car spaces. The owners corporation has taken one of our spaces for visitor parking. Can the owners corporation do this?
• QUESTION: A resident in our complex has purchased a packet of adhesive parking stickers and uses these to enforce parking of his own accord. The Committee would like to know what actions are available to us.
• QUESTION: Can the owners corporation lease visitor parking spots to residents for an agreed amount which is then used to top up the administrative fund?
• QUESTION: Can the Executive Committee affix No Parking stickers to windscreens of offending vehicles?

Question: For visitor parking in a unit plan, when does a long-term visitor become a resident? Can the owners corporation include a definition of a visitor in their rules?

Answer: Nothing in the Act stipulates when someone becomes a resident.

Unfortunately, there is nothing in the Act that stipulates when someone becomes a resident.

The owners corporation is certainly able to include a definition of a visitor within their rules. However, we recommend legal advice be sought to ensure the definition conforms with the legal definition.

Jan Browne and Steve Wiebe
Bridge Strata
E: jan@bridgestrata.com.au
P: 02 6109 7700

This post appears in Strata News #715.

Question: I rent a unit. A car has been parked in my space for over a month. The strata manager will not assist. My property agent suggested I have the car towed. Is this the right action to take?

An unknown car has been parked in my unit parking spot at my residential strata address in Turner, ACT, for over a month. I rent the unit and have been advised by the property agent to have the car towed at my expense.

As the car is not mine, can I legally have the car towed? The strata manager will not assist as they say managing this issue is ‘not their job’. However, isn’t it their job to manage issues about common property?

I’m not sure how to proceed. How do I remove the offending vehicle and regain my parking space?

Answer: As the car parking space is a subsidiary of your unit, it is not considered common property, and therefore, dealing with the offending vehicle is the responsibility of the owner or occupier of the unit.

Unfortunately, we cannot point to regulations that the owners corporation should deal with this vehicle.

You are correct that the owners corporation is responsible for managing and maintaining the complex’s common property. However, as the car parking space is a subsidiary of your individual unit, it is not considered common property, and therefore, dealing with the offending vehicle is the responsibility of the owner or occupier of the unit.

We would suggest that you take the following actions:

1. Place a note advising the vehicle that it must be removed within a set timeframe (say 3-7 days).
2. Check with the Police that the vehicle is not stolen, or check the car registration details here. You will need to input the vehicle’s rego. This website will show if it has been stolen.
3. Police may be able to contact the vehicle owner so you can advise them to move the vehicle.
4. A letter box drop to all complex residents noting that the vehicle has been parked in your space for some time.

We also recommend you review the Uncollected Goods Act 1996 to see if there is an option available to you.

Steve Wiebe
Bridge Strata
E: steve@bridgestrata.com.au
P: 02 6109 7700

This post appears in Strata News #691.

Question: Our complex constantly deals with unauthorised parking and trolleys left on common property. How do we resolve this ongoing problem?

I’m on the executive committee. We constantly have people parking long-term in the visitor’s parking or using a business parking bay they are not authorised to park in. Residents leave shopping trolleys on common property or inside garbage/garden sheds. We also have older people with dementia (who could be dangerous to themselves), wandering around the common areas.

Can I take any further action? I reported these matters to the police and local councils. Everybody says it’s ‘not their problem’. What do we do?

Answer: If the executive committee agree by majority decision and the units can be identified, the manager could be asked to issue warnings.

Unfortunately, long term parking in visitor parking areas is common today with the advent of more vehicles per unit. The issue of trolleys relates to some residents being lazy and not returning.

As a member of the executive committee, you will need to converse with the other members and come to a majority decision to request the managers to issue letters to all owners and agents advising that this parking and the shopping trolleys are in breach of the owners corporation rules (if the plan has a rule that covers this). If not, the owners corporation may look at adding to their rules at the next General Meeting.

If the executive committee agree by majority decision and the units can be identified, the manager could be asked to issue warnings to the owner or resident via the letting agent if rented. If they continue to breach the rules, the Executive Committee would need a meeting to resolve to instruct the manager to issue a Rule Infringement Notice.

If the areas noted are common property, the police or local Government would not normally be involved.

Jan Browne and Steve Wiebe
Bridge Strata
E: jan@bridgestrata.com.au
P: 02 6109 7700

This post appears in Strata News #678.

Question: We purchased a unit with two car spaces. The owners corporation has taken one of our spaces for visitor parking. Can the owners corporation do this?

Answer: You need to double-check the plans and confirm your unit has two subsidiaries noted as car parking spaces.

If the plans indicate your unit has two allocated car parking spaces and noted their location, the owners corporation could not take over these car parks.

I’m not sure what authority the owners corporation is using to do this. You would need to double-check the plans confirming that you have two subsidiaries noted as car parking spaces belonging to your unit.

Check also the Certificate Title of the Units Plan to ascertain unit entitlements.

Jan Browne
Bridge Strata
E: jan@bridgestrata.com.au
P: 02 6109 7700

This post appears in Strata News #653.

Question: A resident in our complex has purchased a packet of adhesive parking stickers and uses these to enforce parking of his own accord. The Committee would like to know what actions are available to us.

At our last AGM, owners were concerned with the EC using strong adhesive parking stickers to enforce parking rules and time limits. Separate advice informed the EC that this action was not permitted under the act. The EC took this on board and subsequently banned the use of these as parking enforcement and has minuted the decision.

Despite this ruling, there is a resident in the complex that has purchased a packet of his own stickers and uses these to enforce parking of his own accord.

This has obviously caused a lot of anger and annoyance within the community and the Committee would like to know what actions are available to us. Obviously, we would like this resident to cease this activity immediately.

Answer: If the offending resident is known to the Executive Committee, they can issue them with a Rule Infringement Notice.

It is assumed that the offending resident is known to the Executive Committee, in which case, the Executive Committee are able to issue a Rule Infringement Notice under S109 of the Unit Titles (Management) Act 2011.

109 Breach of rules—rule infringement notice

1. This section applies if the executive committee of an owners corporation reasonably believes that—
   
   1. the owner or occupier (the person) of a unit has contravened a provision of the corporation’s rules; and
   2. the circumstances of the contravention make it likely that the contravention will continue or be repeated.
2. The owners corporation may, if authorised by an ordinary resolution of the executive committee, give the person a notice (a rule infringement notice) requiring the person to remedy the contravention.
3. A rule infringement notice must state the following:
   
   1. that the owners corporation believes the person is contravening, or has contravened, a provision of the rules;
   2. the provision of the rules the owners corporation believes is, or was, contravened;
   3. details sufficient to identify the contravention;
   4. if the owners corporation believes the contravention is continuing—the period (which must be reasonable in the circumstances) within which the person must remedy the contravention;
   5. if the owners corporation believes the contravention is likely to be repeated—that the person must not repeat the contravention;
   6. if the person does not comply with the notice—
      
      1. the person commits an offence; and
      2. the owners corporation may, without further notice, apply to the ACAT for an order in relation to the failure to comply with the notice.

Upon failure of the individual to comply with the Rule Infringement Notice, the Executive Committee may apply to the ACAT for an order in relation to the failure to comply with the notice as prescribed in A109 (f) (ii).

The Executive Committee may wish to consider a notice to residents advising of the Owners Corporation policy on the use of parking stickers, and reiterating that the use of such stickers is not endorsed by the Executive Committee. This may divert some of the anger and frustration away from the Executive Committee.

Separately to the above action, the affected individual may commence civil action for property damage. This would need to be addressed by the affected party and would need to be initiated by reporting the damage to ACT Policing.

Nina Cannell & Nicole Robb
Signature Strata
E: nina@signaturestrata.com.au
P: 02 6185 0347

This post appears in Strata News #595.

Question: Can the owners corporation lease visitor parking spots to residents for an agreed amount which is then used to top up the administrative fund?

We have a complex with a number of visitor spots that are not used. To help solve parking problems at our building, can the owners corporation lease the spots out to residents for an agreed amount which is then used to top up the administrative fund?

To maintain the security of the building, there is no intent to allow these spots to be used by non residents or sub let out to local businesses or workers.

If this is written into the House rules and agreed to by a majority of the owners, can it be done and is it allowed.

Answer: The Owners Corporation are not permitted to lease spaces out to owners/residents, as this practice would generate an income, which constitutes a business operation.

Section 71 of the Unit Titles (Management) Act 2001 prevents the owners corporation from carrying on a business.

71 Owners corporation must not carry on business

1. An owners corporation must not carry on business except in the exercise of its functions.
   
   Note The earning of income from the operation of sustainability infrastructure by an owners corporation does not amount to carrying on business if the income is used to pay certain costs (see s 23 (4)).
2. If an owners corporation contravenes subsection (1), each executive member of the corporation at the time of the breach commits an offence.

Maximum penalty: 50 penalty units.

The only exception to this clause is the installation of sustainability infrastructure Section 23: Installation of sustainability and utility infrastructure on common property.

Subject to the above, the Owners Corporation are not permitted to lease the spaces out to owners/residents, as this practice would generate an income, which constitutes a business operation. Registration of an Alternate Rule would not be sufficient to overrule the provisions of the Act.

Nina Cannell
Signature Strata
E: nina@signaturestrata.com.au
P: 02 6185 0347

This post appears in Strata News #591.

Question: Can the Executive Committee affix No Parking stickers to windscreens of offending vehicles?

Our Executive Committee enforces parking in the common area by placing very hard, almost impossible to remove, green “no parking” stickers on the front left and rear right of a person’s windscreen.

I am wondering about the legalities of this and whether the EC could be open themselves up to legal issues?

Answer: It is not permissible to affix stickers to the vehicles of visitors.

Subject to a rule permitting such stickers being attached to owners or occupiers vehicles, this conduct is not permitted. The power of an owners corporation to do something is limited to that granted to it under the UTMA.

In any event, it is certainly not permissible to affix such stickers to the vehicles of visitors.

Christopher Kerin
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060

This post appears in Strata News #528.

Have a question about Rule Infringement Notices or something to add to the article? Leave a comment below.

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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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