QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors!

Lot owners from QLD would like to stop residents from abusing the visitor parking in apartments.

Table of Contents:

• QUESTION: In our high-rise apartment complex, an owner seeks ongoing approval for his daughter to park long-term in visitor parking, claiming she is the mother’s carer. Should the body corporate grant this request, considering potential complications and the need to enforce parking rules among residents consistently.
• QUESTION: An owner’s daughter is visiting and has parked in a visitor car park for five days and nights. Can we advise the daughter that she has parked in the space too long and must move? What is an unacceptable amount of time to park in visitor parking?
• QUESTION: We have 12 visitor parking spaces, mostly sitting empty, while residents park their second vehicle on the congested street. Can we convert 7 of the visitor spaces to resident parking?
• QUESTION: Our body corporate has introduced a ticketing system for regulating parking within the complex. This system has been added to the by-laws without approval at AGM or EGM. Is this appropriate, or is approval from owners required?
• QUESTION: In 1997, prior to selling the building the developer gave himself exclusive use of all visitor car parks. Our building approval states there should be 14 visitor spaces. Can the body corporate be fined for not having any visitor parking spaces?
• QUESTION: Would a by-law setting a time limit on visitor parking be valid?
• QUESTION: If contractors come to fix something in the building on a ad-hoc and irregular basis, are they considered visitors? Does this interpretation include a crew of workers, working on a long term contract in the building for up to 6 months?
• QUESTION: Many owners in our large complex park in visitor parking from time to time. The committee has never really enforced parking rules, but have recently engaged a company to enforce parking. Is this permitted?
• QUESTION: What right does a visitor have to demand a visitor car space? A resident was using visitor parking, and a visitor came and was unable to secure a visitor parking spot, so they just parked the resident in.
• QUESTION: Our bylaws do not clearly address parking rules in our scheme. Residents park on common property and in visitor parking spots. Can the committee request an occupier not to park in the visitor parks?
• QUESTION: Can Caretaker/Rental Manager’s staff, eg cleaners and janitors, who use the Visitor Carparks almost every weekday and often on weekends, use visitor parking for extended periods of the day?
• QUESTION: Our caretaker lets out his lot and is therefore not a resident. When working at the complex, he uses the visitor parking. Can he use the visitor parking?
• QUESTION: I have a visitor with an expensive car staying with me. She’s parking in my garage and my old car’s in the visitor’s spot. I’ve been served with a parking breach notice. How is that fair?
• QUESTION: In our 58 lot building there are 58 unallocated parking spaces. Residents allow visitors to stay overnight and use a parking space. Can we stop this by erecting a sign?
• QUESTION: A tenant’s car has been in the visitor parking space of our apartment building for 6 months. How do we remove the car? Should we serve the lot owner with a breach notice?
• QUESTION: We’ve been told that due to council requirements, our two parking spaces are for visitors only. Council says they could be either residents or visitors parking. Could our BCC have decided to make it visitors parking only?
• QUESTION: We have applied to park our third car in an unused, unmarked (visitor ?) parking on common property. Can the body corporate reasonably refuse our request and what is a fair timeframe for approval?
• QUESTION: As a non-resident lot owner, the committee has asked me to stop using the visitor parking in my apartment block. Am I a lot owner or a visitor?
• QUESTION: As part of my Secretary duties can I approach the tenants who are illegally using the visitor parking in our apartments and advise them of the rules?
• QUESTION: One lot owner abuses our visitor parking in apartments by allowing their friends to park in the space all weekend or overnight. What right do we have to police this?
• QUESTION: I am just looking at how I go about reporting, or even whether I am able to do so, residents in my building using visitor parking in apartments almost every night. Two of our guest parking bays continuously taken by residents of units.

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Question: In our high-rise apartment complex, an owner seeks ongoing approval for his daughter to park long-term in visitor parking, claiming she is the mother’s carer. Should the body corporate grant this request, considering potential complications and the need to enforce parking rules among residents consistently.

In our high-rise apartment building, each lot in the complex has allocated parking spaces plus visitor parking spaces with a 4-hour parking restriction.

Our caretaker provides vouchers to residents who have overnight visitors, and this solution has been effective. Recently, an owner requested ongoing approval for his daughter to park in the visitor parking space long-term. The owner claims the daughter is the mother’s carer, but no documentation supports this. The owner has been issued month-long vouchers and now seeks indefinite approval.

Should the Body Corporate adhere to the 4-hour limit and continue providing overnight vouchers, or should they consider the owner’s request? There is a limited number of visitor parking spaces, and granting long-term approval may encourage others to request the same for various reasons. Other owners have NDIS carers who comply with the rules, so why should this owner be treated differently?

If the body corporate rejects the extended approval, can the owner take the matter to the Tribunal for an adjudicator to decide?

Answer: Grant enough exceptions, and pretty soon, you won’t have a system at all.

So many schemes have problems regulating parking and yet here it seems you have a practical system that is functional and accepted.

Is it worth overturning that for one owner?

That’s a choice for your body corporate. If you start making changes for one individual, you should probably make them for all car park users. As you indicate, people may feel they have a valid case for an exception. Grant enough exceptions, and pretty soon, you won’t have a system at all.

As you identify, there is some risk in refusing the request. The owner might challenge the body corporate’s position via the Commissioner’s Office. If they did, any judgment may not be in your favour. It depends on who you ask, but by-laws with time limitations may be a step too far for adjudicators.

Still, it is up to the owner to make that challenge. However, if they’re successful, it might be more difficult for the body corporate to regulate visitor parking. The owner’s daughter can easily access the visitor spots from your description. They just need to apply for their monthly pass. If the system was deregulated, access to that facility could be less consistent as evidenced by the multitude of sites that struggle to control visitor parking with the outcome that many report that actual visitors can’t get a space. Perhaps some discussion with the owner about this and the options may be the best next step, and hopefully, a reasonable position can be agreed upon.

If the owner is asking for permanent use of a common property space, they are asking for the space to be designated for their use via an exclusive use by-law or (less likely) via a property transfer.

For the exclusive use of the space, a by-law must be drafted and voted on at a general meeting. Most likely, the owner would be required to pay for drafting the by-law. Approval would probably be via a motion without dissent, so the matter wouldn’t pass if one owner voted against it. The owner would probably also need to receive consent that the Council has no objection to the body corporate reducing its allocated visitor parking spaces.

If this sounds quite difficult to achieve, it gives you an idea that what the owner may perceive as a simple request isn’t straightforward.

Providing guidance on how to address the owner’s concerns through the Commissioner’s Office is beneficial, as failure to exhaust available resolution options may hinder the progress of any potential legal claim.

It’s important to note that the remit of the committee does not extend to allow them to grant one owner use of the common property permanently.

And even if they did, it’s not recommended to grant individual owners greater use of the common property than they are paying for or in excess of other owners.

As your question correctly notes, other owners at the site may also want additional parking utility. Almost everyone does and they all have reasons that are important to them.

This isn’t to say that body corporates shouldn’t act with compassion when required or where possible.

The committee can grant temporary use over the common property, and I’ve dealt with sites that have granted owners extra use of a space to help with things like broken legs, pregnancies and various other ailments. It’s good for the body corporate to be amenable and help out, but that’s quite different from granting permanent additional rights.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #682.

Question: An owner’s daughter is visiting and has parked in a visitor car park for five days and nights. Can we advise the daughter that she has parked in the space too long and must move? What is an unacceptable amount of time to park in visitor parking?

Answer: Queensland’s strata legislation does not define what a ‘visitor’ is, including the length of time they would need to stay to qualify as a visitor.

Queensland’s strata legislation does not define what a ‘visitor’ is, including the length of time they would need to stay to qualify as a visitor. It varies from case to case, and in the past, adjudicators have been asked to consider different circumstances to determine who might be a visitor and who may be an ‘occupier’. That distinction is important because while a by-law can be enforced against an occupier, that might not be the same for a visitor.

In your case, while someone might be parking for five nights, is that five nights per week, per month or per year? Is it happening all the time, or was it a one-off? Is she staying overnight or a couple of hours at a time? These are the factors that need to be considered.

You’d also need to consider what your by-laws provide for and what development approval might be in place from Council in relation to visitor parking.

Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898

This post appears in the February 2024 edition of The QLD Strata Magazine.

Question: We have 12 visitor parking spaces, mostly sitting empty, while residents park their second vehicle on the congested street. Can we convert 7 of the visitor spaces to resident parking?

This is our current parking by-law:

An owner or occupier must not, without the written approval of the Body Corporate Committee, subject to the Act:

1. park a vehicle or allow a vehicle to stand on any part of the common property (other than in an exclusive use area); or
2. permit a visitor to park a vehicle or allow a vehicle to stand on the common property (other than a designated visitor car parking bay).

Our complex has 24 units with one allocated car space within each lot’s carport. The complex has 12 visitor car parks.

Is it lawful to change the parking by-law to 5 visitor car parks and allow the remaining seven visitor car parks for residents to use as a first-in, best-dressed situation?

Many of our residents have more than one car and park on the street while our visitor car parks are empty.

Are we required, by law, to have 12 visitor carp arks due to local council regulations?

Is there a different lawful way residents can utilise these empty visitor parking spaces?

Answer: Officially, if you wanted to change the number of spaces available, you would need to contact your council to see if they would agree.

The provision of visitor parking spots is usually part of a requirement from council for the granting of the development application to build the site. As such, if you wanted to change the number of spaces available, you would need to contact your council to see if they would agree. You may need to make a development application.

Visitor parking requirements were presumably introduced to help limit offsite parking around body corporate complexes. Perhaps you can argue they are having the opposite effect by pushing owners onto the streets. I think it is important that some visitor parking spaces are available, but as you say, most of yours are sitting empty, forcing compliant residents to clog up the local area. How’s that a win for anyone? If body corporates are to move forward as positive living options, flexible thinking around this type of issue will be required. Councils don’t have a good reputation for this type of adaptability, but it is worth trying. Perhaps raise the issue with your local councillor directly to see if you can get support.

Short of this official position, you could adopt an unofficial system along the lines you suggest. If everyone got along with it, there may not be a problem. Be aware that the entire system can collapse if even one person fails to adhere to the unwritten rules, potentially triggering a range of new problems.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #668.

Question: Our body corporate has introduced a ticketing system for regulating parking within the complex. This system has been added to the by-laws without approval at AGM or EGM. Is this appropriate, or is approval from owners required?

Answer: The best question might not be whether the committee fully upheld the legislation but does the system work.

By-laws can only be added or amended via a general meeting of owners, an AGM or EGM. If the committee introduced the bylaw, you should have had an opportunity to vote, and there would be a record of the vote.

If that hasn’t happened, it sounds like the ticketing system has been installed informally on the committee’s authority. Is this permissible? Maybe, depending on cost and how the system operates. It’s only possible to say with all of the information.

As a next step, you can contact your committee or body corporate manager and ask them to explain the system and why it was installed. Surely there has been some communication sent to owners about what it is and how it works?

If you are unhappy with the system, you can work through the complaints hierarchy – letter to the committee, motion to the committee, motion to a general meeting, complaint to the commissioner – to redress the issue.

It is possible, maybe likely, that the committee is overstepping its reach in some way if it has installed this system without consultation with the owners or any voting. If that is the case, the system should probably be removed until the committee has instituted correct procedures.

Still, there should be a lot of sympathy for committees trying to control parking issues with out of the box ideas because the formal help available to them is so limited. Many schemes have tried the means of resolution allowed by the legislation and have found them ineffective at resolving parking problems. The attorney general promised some new legislation around parking in February, but that office is still twiddling its thumbs on progressing the idea many months later. In these circumstances, it’s unsurprising that some owners will look at alternative solutions. The best question might not be whether the committee fully upheld the legislation but does the system work. Is the body corporate better off? If the answer to these questions is yes, the next step might be finding a way to have the system approved by owners at a meeting.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: In 1997, prior to selling the building the developer gave himself exclusive use of all visitor car parks. Our building approval states there should be 14 visitor spaces. Can the body corporate be fined for not having any visitor parking spaces?

Our building approval has a condition we must have 14 visitor car parks. In 1997, the owner/developer prior to selling the building gave himself exclusive use over the visitor car parks, removing any visitor parks. We have been advised the owners may be subject to a fine from the council for contriving the approval. The lot with exclusive use has no issue with our lack of visitor parking. Residents would like visitor parking spaces reinstated as per our building approval. Can the body corporate be fined for not having any visitor parking spaces?

Answer: If the owners / body corporate are not in compliance with the development approval then the council would be well within their rights to issue show cause notices.

It’s a quarter of a century since it happened but if the owners / body corporate are not in compliance with the development approval then the council would be well within their rights to issue show cause notices. A show cause notice essentially says ‘prove to us why you shouldn’t be prosecuted for breaching the planning approval’.

These are quite often issued to the body corporate, and to be honest if there are not visitor car parking spaces and the development approval requires them, it can get very messy very quickly. It has probably gone this far because no one has complained, and the complainer would normally be someone whose visitor cannot obtain parking!

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #635.

Question: Would a by-law setting a time limit on visitor parking be valid?

Can the committee set a time limit on how long a visitor can park in a visitor parking area, after which time the person would be deemed an occupier?

Would a by-law covering the above scenario be valid?

Answer: Adjudicators have found that time restrictions on visitor parking are unlawful, unless there are specific circumstances which require the imposition of time restrictions to ensure the car spaces may be used by bona fide visitors.

Unfortunately not. Adjudicators have found that time restrictions on visitor parking are unlawful, unless there are specific circumstances which require the imposition of time restrictions to ensure the car spaces may be used by bona fide visitors.

In Tea Trees [2017] QBCCMCmr 60 the adjudicator provides (our emphasis):

“The primary issue is By-law 21 attempts to regulate the use and parking of motor vehicles at the scheme. However the Body Corporate’s requirement for a maximum of four hours in visitor parking seems unreasonable. Any person genuinely visiting a lot in a community titles scheme, for whatever reason, may need to visit for longer than four hours. In recent decisions it has been noted that an “8-hour restriction on the use of visitor car spaces” was reasonable, “particularly if there is high demand for visitor spaces, this should be sufficient allowance for a genuine visitor”. While it may be desirable to have a time limit subject to the discretion of the Committee to approve a longer time if particular circumstances warranted that, previous adjudications have accepted the validity of time limits in visitor car spaces. However, in this instance I am satisfied that a four hour time restriction is unreasonable and that the time frame should be longer.”

There is no definite answer in respect to when a Visitor becomes an Occupier and will depend on the circumstances of each matter. This was seen in Picture Point [2004] QBCCMCmr 384 where the adjudicator provided (our emphasis):

“…the distinction between an occupier and a visitor may not always be completely clear. As a general rule, persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers. Persons just visiting for one or two nights of that period would normally be classed as visitors. Similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor. The more difficult questions arise when a person stays with someone for a number of nights or on a very regular basis. In those cases, it will be necessary to look at all the circumstances to determine if they are an occupier or a visitor.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #629.

Question: If contractors come to fix something in the building on a ad-hoc and irregular basis, are they considered visitors? Does this interpretation include a crew of workers, working on a long term contract in the building for up to 6 months?

ANSWER: A large part of the interpretation would depend on whether the contractor was attending a lot.

Assuming that there were no peculiar or specific development approval conditions which dealt with these two different scenarios, adjudicators take the following interpretation as to who is a visitor:

A bona fide visitor is someone who is not the owner or occupier, however temporary that occupation may be. If holiday-makers are renting units, they are treated as “occupiers” and must use the unit’s exclusive use area carport. A visitor is someone who calls on the owner or occupier. The length of time over which a visitor needs to stay may vary depending on the purpose of the visit.

Accordingly, a large part of the interpretation would depend on whether the contractor was attending a lot – if they are calling on an occupier to work on a lot then they would be a visitor. If they are engaged by the body corporate it is less clear and the longer the arrangement, the less likely they are to be considered a visitor.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the December 2022 edition of The QLD Strata Magazine.

Question: Many owners in our large complex park in visitor parking from time to time. The committee has never really enforced parking rules, but have recently engaged a company to enforce parking. Is this permitted?

In our 110 unit complex, the committee has never taken action to enforce the onsite car parking rules, apart from the occasional newsletter.

Many owners and occupiers use the visitor car parks from time to time. Most residents do not mind. I have not seen anything in Body Corporate minutes regarding enforcement but now they have decided to allow an outside company to enforce parking in the carpark. Is this permitted?

This is not a commercial car park, and the outside company have no legal right to issue fines. As owners, where do we stand?

Answer: The committee is responsible for enforcing the by-laws in relation to parking and they can’t delegate that responsibility.

It’s not entirely clear from your query what’s occurred, but it seems as though an outside contractor has been engaged to regulate parking. Your first step is to find out the terms of that – are there any minutes about it or do you recall being asked to vote on the concept (if you’re an owner)? There may be several actions which follow depending on what has occurred there. For example, there are restrictions on what the committee can and can’t do in relation to deciding upon proposals and use of common property. It would also depend on the terms of the contract with the contractor.

Putting that to one side, it’s almost irrelevant whether or not the contractor is there because at the end of the day, it remains the committee’s responsibility to enforce the by-laws in relation to parking and they can’t delegate out that responsibility. Your query doesn’t actually say what the by-laws are but it seems as though there’s been a bit of a casual approach to parking up to now. You need to lay your hands on the by-laws, if you don’t have a copy then you can obtain them from the Titles Office. If you’re an owner then you can propose changes to the by-laws at a general meeting. If you are wanting by-laws about parking to be enforced, you can go through the process of having the body corporate (via the committee) to do that or, if the body corporate won’t, you can pursue that yourself through dispute resolution through the Commissioner’s Office.

If you’ve got designated visitor car parks then owners and occupiers shouldn’t be using those, regardless of whether everyone is ok with that. It may be a breach of the conditions of development of the building and lead to issues with the local council.

Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: What right does a visitor have to demand a visitor car space? A resident was using visitor parking, and a visitor came and was unable to secure a visitor parking spot, so they just parked the resident in.

Answer: We all know that parking can get frustrating but blocking people in like this is probably not the answer.

That’s an unusual situation… Visitors parking is for visitors, but the visitors themselves don’t have any enforcement rights over the body corporate as they don’t have a contractual relationship with them. Rather, the matter would likely be referred through the owner who was connected to the visitor and the Committee could determine the next steps. We all know that parking can get frustrating but blocking people in like this is probably not the answer.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #595.

Question: Our bylaws do not clearly address parking rules in our scheme. Residents park on common property and in visitor parking spots. Can the committee request an occupier not to park in the visitor parks?

Our strata scheme has 40 units in duplex configurations. Approximately half of the duplexes have a common property driveway access of sufficient length to park a vehicle in-front of the unit. The other half do not. There are 26 Visitor Car parks throughout the complex.

We have the following by-law related to parking:

1. The occupier of a lot must not:
   
   1. Park a vehicle, or allow a vehicle to stand on the common property in a manner likely to interfere with the peaceful enjoyment of other occupants
      
      OR
   2. Permit an invitee to park a vehicle, or allow a vehicle to stand on the common property except in the visitor spaces allocated.

We have several occupants with two cars. Some park additional vehicles in the driveways where they can be accomodate. Some are parking in the visitor parks as it appears this is not prohibited in the by-laws.

Conversely, visitors parking in the driveways in front of units does appear to be prohibited by the by-laws. Clearly the bylaws need to be refined and the committee is in the process of getting the information from Council as to the requirements for regulated visitor parks. They intend to submit new bylaws to the next AGM. However under the current bylaws, can the committee request an occupier not to park in the visitor parks.

Answer: By parking in the visitor’s spaces, owners are interfering with the peaceful enjoyment of the complex by others.

The wording of your by-law is a little vague but I think you can still ask owners not to park in the visitor’s spaces. After all, they are common property and by parking there, owners are preventing genuine visitors from using the spot. They are interfering with the peaceful enjoyment of the complex by others. I think you are fine to start notifying people on that basis.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #591.

Question: Can Caretaker/Rental Manager’s staff, eg cleaners and janitors, who use the Visitor Carparks almost every weekday and often on weekends, use visitor parking for extended periods of the day?

Answer: This will depend on their frequency of visiting the scheme.

Whether the staff and contractors of a caretaker are genuine visitors (and capable of using the visitor car park) will depend on their frequency of visiting the scheme. If it is regular and routine, they should not be using the visitor car parks.

This should be distinguished from a contractor visiting an occupier to perform some works to a lot – that would be a genuine visitor.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #575.

Question: Our caretaker lets out his lot and is therefore not a resident. When working at the complex, he uses the visitor parking. Can he use the visitor parking?

Our Caretaker is also a lot owner. He lets his unit and carpark out and therefore is not a resident. He regularly uses one of the four visitor car parks when he is at work. Is he allowed to do it? Our by-laws state that owners are not allowed to use visitor car parks. Is he considered a visitor as part of his Caretaker role?

Answer: The visitor car spaces cannot be used by anyone other than bona fide visitors.

It is generally a local authority requirement that a scheme carries a certain number of visitor car spaces, and if this is the case, then the visitor car spaces cannot be used by anyone other than bona fide visitors.

The Body Corporate and Community Management Act 1997 (Qld) defines an occupier as (amongst other things):

1. a resident owner or resident lessee of the lot, or someone else who lives on the lot; or
2. a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot.

A caretaking service contractor would fall within the meaning of ‘occupier’ if they carry on a business from a lot within the scheme. If this is not the case, it would be necessary to establish that the caretaking service contractor is not a bona fide visitor for the purposes of the by-law.

The correct outcome largely depends on the circumstances of the particular matter, and adjudicators have found that a visitor is someone who is present temporarily on a lot or common property. In Picture Point [2004] QBCCMCmr 384 the adjudicator provides:

There does seem to be some uncertainty about who constitutes a genuine visitor to the scheme and will be entitled to use the visitor car parks. There seems to be a general understanding that occupiers of the scheme are not entitled to use the visitor car parks. However, the distinction between an occupier and a visitor may not always be completely clear. As a general rule, persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers. Persons just visiting for one or two nights of that period would normally be classed as visitors. Similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor. The more difficult questions arise when a person stays with someone for a number of nights or on a very regular basis. In those cases, it will be necessary to look at all the circumstances to determine if they are an occupier or a visitor.

As the caretaking service contractor must attend the scheme as its place of work, it does not appear to be a temporary arrangement. Accordingly, a caretaking service contractor is not likely to constitute a bona fide visitor and would be captured by the terms of the by-law.

Holly Dunne
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #570.

Question: I have a visitor with an expensive car staying with me. She’s parking in my garage and my old car’s in the visitor’s spot. I’ve been served with a parking breach notice. How is that fair?

I have a visitor staying with me while house and job hunting. Her car is valuable and attractive and I have parked it in my unit garage and put my old car in a visitors car park

I’ve been informed in writing I am in breach of the by-laws and face removal. Other people’s visitors park in visitors and no parking bays all the time. I believe I am being singled out.

Also, I am disabled. I have a parking permit but am told I cannot park in the sole designated disabled car park on the lot as I have a garage.

Answer: The easiest solution is to have your visitor park in the visitor’s parking spaces.

Visitor’s parking is for visitors only, so technically it sounds like the letter of the law is being applied here. The easiest solution here is probably to have your visitor park in the visitor’s parking spaces.

Still, there can be grounds for some flexibility. Most visitors parking by-laws allow for the committee to make decisions on how visitors parking can be used by occupants. The standard schedule 4 by-laws, which may be different from yours, state:

2 Vehicles

1. The occupier of a lot must not—
   
   1. park a vehicle, or allow a vehicle to stand, in a regulated parking area; or
   2. without the approval of the body corporate, park a vehicle, or allow a vehicle to stand, on any other part of the common property; or
   3. permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property, other than in a regulated parking area.

2. An approval under subsection (1) (b) must state the period for which it is given.
3. The body corporate may cancel the approval by giving 7 days written notice to the occupier.

So, if your by-law states something similar, approval to park a vehicle in the visitors spots can be approved by the Committee if they think it appropriate. Sometimes, there can be good short term reasons for doing this, such as helping an owner who is temporarily incapacitated for some reason.

Ideally, you would have made an application for your preferred parking arrangement in advance of your visitor arriving, but there is no reason you can’t do this after the fact.

The question would then be whether your request to have your visitor park in your spot and you park in the visitors spot is reasonable. My feeling is that Committees shouldn’t be making decisions based on perceived value of property as presented in the question. Everyone’s property is valuable to them, meaning a value judgement along these lines may be perceived as discriminatory. Is it OK to approve an arrangement like this because the vehicle you are looking to protect is a Lexus rather than a second hand Honda? That’s creating different rules for different owners based on financial status. It doesn’t seem reasonable to me. As stated, the visitor has the option of parking in the visitor’s spots. If they don’t feel comfortable with this arrangement, it’s hard to see that it is a body corporate problem.

The advice you have received regarding the disabled car space sounds correct. More exactly, that spot should probably be labelled the ‘visitor’s disabled car space’. It is intended for the use of disabled visitors rather than disabled occupants. As an occupant you should park in the space allocated to your lot.

This kind of interpretation can seem a bit hard on owners and is sometimes difficult for people to understand, but it is reasonable if you think about the question in terms of utility. By requesting the use of the space, you are asking for more utility than you are paying for. There may be some compassionate grounds to consider this, but then the body corporate also has to consider other applications from other owners. What if there were two disabled owners onsite? Which one should have use of the spot? Once additional utility is granted to one owner, it’s hard to reject the same additional utility request from other owners. The body corporate regulations aren’t perfect but they are workable in most instances. If they are going to be changed for some reason, the change has to be an improvement for the entire body corporate rather than an accommodation for individuals.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the May 2022 edition of The QLD Strata Magazine.

Question: In our 58 lot building there are 58 unallocated parking spaces. Residents allow visitors to stay overnight and use a parking space. Can we stop this by erecting a sign?

We have a 58 lot building and 58 car parks. No one has a designated car park place. First in gets a parking spot. Quite often recently lot owners or tenants are allowing their visitors to stay overnight and use a parking space resulting in residents of the building losing a parking space and having to park on the road.

Are we able to put up a sign stating something to convey that this is a private car park and only persons with a pass may park in the car parks?

The by-laws mention visitor parking and say that it is at the Committee’s discretion which car parking spaces are nominated for visitors. The bylaws also mention that no visitor may use car parking overnight.

Answer: A sign is not a bad idea, so long as it is clear and visible to all.

If the by-law is being breached – i.e., visitors are staying overnight – then the by-law needs to be enforced. That said, the by-law probably needs review. What does ‘Committee discretion’ mean, anyway?

A sign is not a bad idea, so long as it is clear and visible to all. I’m not sure about the mention of a pass. If someone has a car park on title, for example, would they also need a pass?

For more information about signage and towing generally, have a look at this information provided by the Department of Transport and Main Roads.

Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500

Question: A tenant’s car has been in the visitor parking space of our apartment building for 6 months. How do we remove the car? Should we serve the lot owner with a breach notice?

There has been a tenant car parked in our visitor car parking space since mid 2020. The owner claims her tenant is stuck overseas due to COVID and the car should be left in the visitor space. The owner is a resident in the complex and claims the tenant boards in one of her bedrooms.

Should she be served a breach notice? Should we seek an order from the commissioner’s office to remove the car? So far, letters have been sent, but no breach notices.

Answer: The legal route is the next option if you want the vehicle moved.

Visitor car parking is for visitors only, so the tenant shouldn’t have been parked there in the first place. As notice has been provided and neither the tenant nor owner seems able to resolve the issue, the legal route is the next option if you want the vehicle moved.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #461.

Question: We’ve been told that due to council requirements, our two parking spaces are for visitors only. Council says they could be either residents or visitors parking. Could our BCC have decided to make it visitors parking only?

Our residents have been told that due to council requirements, our two parking spaces are for visitors only. The council informed me when our unit block was approved it was for off street parking, either residents or visitors. Can the Body Corporate Committee decide to make it visitors only?

Answer: The body corporate records should record all changes made to the by-law and strata plan.

It seems like you have two contradictory pieces of information here. Firstly, that resident’s can’t use visitor’s spaces – which seems correct. Then, the spot was originally designated for residents or visitors – which seems unusual.

The body corporate records should record all changes made to the by-law and strata plan so if that was the case, you should be able to find any changes there.

Regardless, your by-laws will set out how visitor’s parking can be used. I would be surprised if it was for anything other than visitors only.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #447.

Question: We have applied to park our third car in an unused, unmarked (visitor ?) parking on common property. Can the body corporate reasonably refuse our request and what is a fair timeframe for approval?

I moved into my 3 bedroom Villa late last year with my daughter and granddaughter. We are a 3 car family.

All residents have a garage space and permission for another car to be parked outside their garage. We have a carpark near our units that can accommodate 8 cars which is very rarely used. There is no signage to say whether it is a visitor car park or for residents.

I recently received a phone call and a warning letter NOT to continue parking there and advising that the complex only accommodates residents with 2 cars and my car would be towed at my expense if I did not adhere. They advised that this particular carpark was an overflow parking area for those residents that are unable to park their second vehicle in front of their garages because of obstruction.

I was told that our third car would have to be parked on the street. This would create safety issues for my Grandaughter. It appears that 2 residents have been given permission to park in this overflow space. There are 4 trailers that are parked close by on common property but not in any marked or designated parking area, at all but seem to have permission!

I have appealed to the Body Corporate in writing asking for permission to be given for 1 car to be parked in the parking lot.

We have done our very best to adhere to their orders and have been parking on the street although the said carpark remains empty.

The Body Corp acknowledged they have received my letter/email and that I was not to park in the car park until the Committee had made a decision, and I was not to reply to the acknowledgment email. In other words, just sit and wait.
This was a month ago and I have still had no reply.

It appears that common sense has gone out the window and someone on the committee is being very unreasonable.

Answer: It depends on the purpose of the visit.

To determine whether you can park in that overflow area you would need to see what the by-laws say and whether there are any council restrictions requiring particular parks to be reserved for visitor parking.

If there aren’t council restrictions on parking there, the by-laws may allow you to do so with committee approval (which seems to be what the committee is considering).

The committee needs to consider that request in a reasonable time and come to a reasonable decision. A month or so is probably enough time to come to a decision unless there is a scheduled upcoming committee meeting in the not too distant future or the committee is looking into the council restriction issue. It might be worth emailing the committee and asking for a timeframe to receive a response.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #254.

Question: As a non-resident lot owner, the committee has asked me to stop using the visitor parking in my apartment block. Am I a lot owner or a visitor?

I am a non-resident owner in a small building in Queensland. My unit is let out. I visit the property regularly and park in visitor parking. We have a bylaw which states that:

An owner or occupier of a lot shall not park a motor vehicle upon areas set aside for visitor car parking.

Is this bylaw legal and enforceable?

The committee has requested I no longer use visitor parking as I am an owner.

Answer: It depends on the purpose of the visit.

I think it depends on the purpose of the visit.

If it is to stay at the unit then the owner would also be an occupier – so they should not be parking in visitor parking.

If they are visiting the unit for a committee meeting or inspection of the unit then that is what the visitor parking is reserved for.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #238.

Question: As part of my Secretary duties can I approach the tenants who are illegally using the visitor parking in our apartments and advise them of the rules?

I am the Body Corporate Secretary and have been told not to talk to the tenants of a certain unit about their illegal car parking.

We have a company who looks after our complex as a whole, but asking them to do something isn’t easy and on the whole, their correspondence to all 10 units in the complex is apparently ignored as tenants still use the visitors parking in our apartments or park on the lawn against Body Corporate regulations.

As part of my Secretary duties can I approach the tenants and advise them of the rules? Hoping you can assist.

Answer: 100% you can (and you should).

100% you can (and you should).

People sometimes don’t even know there are rules, and if you do it in a non-confrontational and informative manner you may well get the outcome.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #215.

Question: One lot owner abuses our visitor parking in apartments by allowing their friends to park in the space all weekend or overnight. What right do we have to police this?

What can be done to stop one of the units using the 4 hour VISITOR PARK for her friends to park in for the whole weekend, or overnight?

This lot owner is abusive and thinks she can dictate whatever she wants.

She even has the tradesmen park in the VISITOR PARK. She treats the visitor parking in apartments as if it is her own personal parking space. She has a double carport already!

Answer: If the friends are visitors (which it sounds like they are), then that is what the visitor parks are for.

If the friends are visitors (which it sounds like they are), then that is what the visitor parks are for. On top of that, I don’t think a body corporate can impose a four hour restriction unless it is part of some Council approval or there is some other dire need for it (like being abused on a commercial scheme context). Tradesmen are also visitors.

As a lot owner, you have the same rights if you have visitors as well.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #195.

Question: I am just looking at how I go about reporting, or even whether I am able to do so, residents in my building using visitor parking in apartments almost every night. Two of our guest parking bays continuously taken by residents of units.

I am just looking at how I go about reporting, or even whether I am able to do so, residents (owner occupied and tenants) using visitor parking in apartments almost every night.

I am in Broadbeach. We have 5 underground guest parking bays, and two of them are continuously taken by residents of units. One resident even has two parking bays designated to them, yet uses one of their bays for storage and one for their first car, so the second car is continuously parked in the guest bay.

At times I have had family come to visit from Brisbane only to have them park a block over, due to all five guests parks being used, yet two of them are resident’s cars and the same cars each time.

Who do I address my concerns about visitor parking in apartments to? There is even a sign above the guest bays stating parking by residents is in breach of bylaws.

I feel a strong warning could suffice from the appropriate committee, and possibly sent to every unit as to not single anyone out. Only to then follow up with possible prosecution if they continue to break the rules.

Answer: If someone is living in the scheme full time as an occupant they should not be using the visitor car parks.

The first rule of visitor parking is that it is for visitors. If someone is living in the scheme full time as an occupant (whether as an owner or tenant) then they should not be using the visitor car parks. Assuming that the body corporate has a lawful by-law in place to this effect then the committee MUST enforce it.

Committees do not have the choice about whether enforcing by-laws. They have a statutory obligation to do so. This would apply to the occupier parking in the visitor car park and potentially the storage in the exclusive use park (depending on the exclusive use by-law).

The occupant should request that the committee enforce the by-laws and lay out the evidence of the breaches. To be fair to the committee – they may not know this is going on. This can be gently in a letter but there is also a more formal process under the Act under which the occupant issues a form to the committee which they must act on.

If the committee ignores that then the occupant can take action themselves, but they must try the committee path first.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #181.

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