WA: Q&A How Do We Stop Parking Problems in Our Strata

WA lot owners in Perth are wondering how to solve various parking problems in their strata building. Is it a good idea for the council of owners to enter into an agreement with the local council to help police strata problems parking in WA?

Table of Contents:

• QUESTION: Can a non-resident lot owner in our small complex leave their car parked at our building for six months while they travel overseas?
• QUESTION: How long is a visitor classed as a ‘visitor’? One lot has a visitor who has stayed and parked in visitor parking for over two months.
• QUESTION: Are there any regulations or laws that limit the number of vehicles parked within the complex per unit? A lot owner parks four cars on their exclusive use area outside their unit.
• QUESTION: The other owner of our duplex parks on the common property in front of their garage door. They restrict access to my garage. What can I do?
• QUESTION: We own a one bed apartment in a strata complex in Western Australia. We have one car bay. Can we park a car and a motorcycle in our single parking space?
• QUESTION: How do we permanently swap our distantly located parking bay with the more conveniently located visitor parking?
• QUESTION: I own two lots in my building, residing in one and leasing the other. I prefer the car space allocated to the other lot. Can I formalise this arrangement?
• QUESTION: In our city apartment building, even though we have a visitor parking bylaw and arrangement with the local council, we still experience ongoing problems with both residents and outsiders using the parking. What else can we do?
• QUESTION: Can the council of owners enter into an agreement with the local council to issue infringement notices for visitor parking bay problems?
• QUESTION: We rent in a unit complex at the end of a long driveway. We have been told we are “not permitted to have any non residential cars come down the drive”. Is this reasonable?
• QUESTION: Residents, including COO members, park on the verge and have damaged the retic. How do we stop parking on the verge?

Question: Can a non-resident lot owner in our small complex leave their car parked at our building for six months while they travel overseas?

Answer: If the car bays are considered common property, the strata company must control and manage that property for the benefit of all the owners of lots.

It is a challenge to respond to these types of questions because the response depends on various factors.

What does the Act say?

If the car bays are considered common property, then pursuant to Section 91 of the Strata Titles Act 1985 (STA), the strata company must control and manage that property for the benefit of all the owners of lots. This would include the control and management of the car park/bays.

What do the by-laws and strata plan say?

If the car bays are common property and if there is no scheme specific by-laws, default Schedule 2 Conduct By-law 1(2) dictates that a lot owner must not park or stand any motor or other vehicle on the common property except with the written approval of the strata company (being the council of the strata company).

This by-law, in conjunction with the STA 1985, allows the strata company to make rules around the parking of vehicles on the common property, including, but not limited to, implementing processes that allow for the removal/fining of vehicles (if required).

If the car bay is listed as a part lot and again, only the default by-laws are in place for the scheme, the owner of that lot has a right to park the vehicle for an extended period.

Some strata companies have adopted by-laws specific to vehicles parked on common property (including visitor bays) and/or agreed to rules around the grant of lease, licence or other occupancy rights. For example, some strata company by-laws do not allow part lot car bays to be leased to anyone who is not a resident of a lot.

Where does that leave you?

Harmonious community living should be a priority in strata schemes, so we recommend starting a conversation with the involved parties, including the council of the strata company in the first instance.

If everyone has an understanding of the scheme by-laws that apply, these conversations are made easier and generally, a resolution can be reached.

Depending on what the strata company decides is the appropriate approach, there are various ways car parks can be managed:

• Implementation of house rules (to be supported by adopted by-laws)
• Engagement of car park management professionals (ticketing systems and/or parking limits)
• Signage
• Towing policy

We recommend reaching out to your strata manager for further advice.

ESM Strata
E: mchurstain@esmstrata.com.au
P: 08 9362 1166

This post appears in Strata News #685.

Question: How long is a visitor classed as a ‘visitor’? One lot has a visitor who has stayed and parked in visitor parking for over two months.

A lot in our building has a visitor who has stayed for over two months. They have been parking in the visitor car parking bays.

How long is a visitor classed as a ‘visitor’?

Residents are complaining about the car taking up spots their visitor’s spots.

Do the by-laws address this?

Answer: Two months would be considered well past most laws and they would be determined an occupier.

You should check the by-laws applicable to your scheme. You may have by-laws registered that deal with this or the Standard Schedule 2 – Conduct By-Laws, which note:

Vehicles and parking

1. An owner or occupier of a lot must take all reasonable steps to ensure that the owner’s or occupier’s visitors comply with the scheme by-laws relating to the parking of motor vehicles.
2. An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the strata company.

Please note that local councils also have laws on visitors and time frames, and visitor spaces are common property. Please note, in other strata cases, the courts have deemed “persons just visiting for one or two nights of that period would normally be classed as visitors.”

Two months would be considered well past most laws and determined an occupier.

Jamie Horner
Empire Estate Agents
E: JHorner@empireestateagents.com
P: (08) 9262 0400

This post appears in Strata News #659.

Question: Are there any regulations or laws that limit the number of vehicles parked within the complex per unit? A lot owner parks four cars on their exclusive use area outside their unit.

Are there regulations about how many vehicles an owner can park on their property according to the strata footprint ratio?

We have an owner within a strata villa complex who has a large section of exclusive-use land at the front of their unit. They have removed all the grass and created paved parking for four vehicles on this space for the use of that unit’s residents.

All other unit owners have one vehicle space at the front of each unit.

Aside from the breach of not seeking strata permission to carry out the paving, is there anything that limits the number of vehicles parked within the complex per unit?

Answer: There are some other laws that the strata company can look to review in this scenario.

There are no laws or regulations in the Strata Titles Act regarding how many vehicles can be parked within a lot, however, there are some other laws that the strata company can look to review in this scenario. The Strata Titles Act has laws regarding appearance of lot under the Schedule 2 Conduct By-Laws. Under this law:

“An owner or occupier of a lot must not, without the written consent of the strata company, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.”

The other laws the strata company may want to review is that of your Local Council. The Local Council will have laws regarding the parking of vehicles as per the Local Planning Policy but also a law regarding verges. These laws include what you can and can’t place on a front verge. Many Local Councils do prohibit what you can place on a verge, including hardstand material, to a certain percentage.

In addition, a long term solution may be to look to implement a additional by-law registered to the scheme that specifically denotes the number of vehicles that can be parked within a lot.

Jamie Horner
Empire Estate Agents
E: JHorner@empireestateagents.com
P: (08) 9262 0400

This post appears in Strata News #650.

Question: The other owner of our duplex parks on the common property in front of their garage door. They restrict access to my garage. What can I do?

I live in a duplex. The other duplex owner parks in front of their garage door on the common driveway. They restrict access to my garage.

I have spoken to the owner, but nothing has changed. The council cannot help because we are on private property.

Is there something I can do?

Answer: As you are in a two lot scheme, my recommended approach is very different from what I would recommend in a larger scheme.

Parking is one of the most common disputes in strata title properties. To resolve parking disputes, you must first understand the by-laws that are applicable to your scheme. It is common for a strata company to amend the standard by-law associated with parking and/or to have exclusive use by-laws associated with parking bays. As I do not have that information, I will work on the assumption that the Standard Schedule 1 Governance By-Laws and Schedule 2 Conduct By-Laws are all that apply to your scheme. The Standard By-Law pertaining to parking reads:

1. Vehicles and parking
   
   • An owner or occupier of a lot must take all reasonable steps to ensure that the owner’s or occupier’s visitors comply with the scheme by-laws relating to the parking of motor vehicles.
   • An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the strata company.

Given that you are in a two lot scheme, the strata company consists of yourself and the lot owner you are in dispute with. For this reason, my recommended approach is very different from what I would recommend in a larger scheme. To resolve the breach of by-law, I would suggest carrying out the following in this order:

• Talking with the neighbour in a peaceful manner.
• Put your concerns in writing. Keep the tone to the point and non-threatening.
• Prepare a breach notice and issue the notice to your neighbour advising they are in breach of the by-law.
• Be careful to ensure the notice is compliant with the Strata Titles Act 1985.
• A strata consultant or lawyer would be able to assist in preparing a breach.
• If necessary, continue to issue up to three breach notices.
• Apply to the State Administrative Tribunal (SAT) for the matter to be resolved before the tribunal (Penalty can apply).

SAT is a low cost jurisdiction and you can carry out this process without legal representation. Whilst parking disputes are often straightforward, you may want to consider legal advice and guidance on the SAT process prior to proceeding. It would be appropriate to arrange a discussion with a lawyer that specialises in strata law.

Luke Downie
Realmark
E: ldownie@realmark.com.au
P: 08 9328 0999

This post appears in the May 2023 edition of The WA Strata Magazine.

Question: We own a one bed apartment in a strata complex in Western Australia. We have one car bay. Can we park a car and a motorcycle in our single parking space?

Answer: The owner can park their vehicle and their motorcycle in their car bay at the same time as long as both are not encroaching into the common property or into someone else’s car bay outside the boundaries of the car bay.

It is our opinion that regardless whether that car bay is in individual ownership, a special lot for exclusive use or otherwise allocated to the unit (where that bay remains common property), the owner can park their vehicle and their motorcycle in their car bay at the same time as long as both are not encroaching into the common property or into someone else’s car bay outside the boundaries of the car bay.

The owner is advised to also check the Strata Company bylaws in relation to parking of vehicles in allocated car bays as they may stipulate rules in relation to parking of vehicles and motorcycles in an owner’s car bay.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger
magixstrata
E: marietta@magixstrata.com.au
P: 08 6559 7498

This post appears in Strata News #629.

Question: How do we permanently swap our distantly located parking bay with the more conveniently located visitor parking?

Our unit has been using the visitor parking bay as it is the bay which is closest to our unit. This arrangement has been going on for decades without complaint as it is also more convenient for visitors who can then park at the front of the complex.

Recently, a resident complained and this triggered the end of the arrangement. The complaining resident has now left the complex. How can we reinstate the arrangement more permanently? Can the COO give written permission for our unit’s bay to swap with the visitor bay or can we enter into some type of lease?

Answer: There are various ways this can be achieved.

We assume that the visitor car bay sits in common property. Under Section 91 of the Strata Titles Act 1985 as amended 2018 the Strata Company must manage the common property for the benefit of all owners.

The Standard Bylaws further go on to say that an owner, occupier or other resident of a lot shall not park in the common property without the written consent of the Strata Company.

The visitor car bay obviously has been a designated parking bay for visitors to use, which would mean that the common property is being managed for the benefit of all the owners.

If an owner is using common property for their exclusive use, our recommendation is that either an owner/occupier is being granted exclusive use (creating a special lot) by way of registering an appropriate exclusive use bylaw voted on by the owners with a Resolution without Dissent Section 43 of the Strata Titles Act 1985 as amended) or the owner enters into a Lease agreement with the Strata Company over common property as per Section 93 (2) (c) of the Strata Titles Act which also requires a Resolution Without Dissent or the Strata Company grants a licence over common property.

We recommend that the owner wanting to use the common property visitor car parking for their own use, either permanently or over a period of time exclusively, is seeking legal advice to ensure that any so prepared lease or licence agreement is done in the correct form and with the correct resolution for the owners to vote on.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger
magixstrata
E: marietta@magixstrata.com.au
P: 08 6559 7498

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

Question: I own two lots in my building, residing in one and leasing the other. I prefer the car space allocated to the other lot. Can I formalise this arrangement?

I am the owner of two units in a strata development. Each unit in the complex has been allocated a car bay and an attached storage facility indicated on the strata plan.

Each of my units has a car bay and a storage unit attached.

I reside in one unit and rent the other unit out.

The car bay attached to my rental unit is my preferred bay. Therefore, I use this bay and allocate the bay attached to the unit in which I reside to my tenant.

I want to formalise this arrangement by exchanging the bays and storage units.

1. Is this possible?
2. What process would need to be followed?
3. Does the Council of Owners need to approve the change?
4. Would the change need to be approved at an AGM?
5. Would this be considered a sale/purchase arrangement on which stamp duty is payable?

Answer: It is going to be a challenging prospect for this owner to be able to amend the strata plan, and it will cost them a little bit of money.

Yes, it can be achieved, but it’s an amendment to the strata plan. So you’re actually going to need to get a surveyor to actually redraft the strata plan around where the car bays and the storage units are and amend the numbering to reflect the preferred unit usage.

That’s a unanimous resolution. So yes, it will have to go to a general meeting of the strata company. Unanimous resolutions are now easier to pass in that while it requires every owner to vote in favour of the motion and no one can vote against it, if you haven’t voted generally after the 28 days, it’s a deemed approval now. It does make it easier to get a unanimous resolution passed. But it is going to be a challenging prospect for this owner to be able to amend the strata plan, and it will cost them a little bit of money to get there.

If they decide to sell either lot, they would have to resolve this issue. It could be even more complicated depending on what the bylaws say, you generally can’t lease your car bay and given this change these swapsies which they’ve done around the preferred car bay and the unit they reside within, that may create some complications around the leasing arrangement. Ultimately if they look to sell one of the units, they would have to go down this process or they would just have to park in the bay that’s been allocated to their lot.

Scott Bellerby
B Strata
E: scott.bellerby@bstratawa.com.au
P: 08 9382 7700

This post appears in Strata News #522.

Question: In our city apartment building, even though we have a visitor parking bylaw and arrangement with the local council, we still experience ongoing problems with both residents and outsiders using the parking. What else can we do?

I reside in an apartment near the city. It is a 9 level building that has 40 units and is 50% owner-occupied. I am a member of the Council of Owners.

Each unit has a dedicated parking bay.

The building has four VISITOR PARKING bays. Our building rules and guidelines specify who may use these bays and for how long. However, these rules are not included in the by-laws. The only reference in the by-laws is the clause that reads as follows:

1. A proprietor, resident, or occupier of a lot shall not stand or park any motor vehicle or other vehicle upon common property except with the written approval of the strata company.

The area has a notice clearly displayed and referencing the City Council Law under which the parking is controlled.

We experience ongoing problems with both owners and tenants parking in the area. We also have issues with outsiders parking in the bays for extended periods.

The sentiment of the Chairperson of the Council of Owners is that there is very little that can be done. The Chair believes that whilst it is bad faith for an owner or tenant to park in these areas, they are legally entitled to do so.

It has been suggested that bollards be erected and controlled by the full-time caretaker, but this is onerous.

It has further been suggested that the bays be leased to residents on a rotational basis for six months and that they are charged a monthly fee for the use of the bays. These funds would be paid to the Strata Reserve Fund.

1. Are there any formal avenues that can be followed to prevent the improper use of these bays?

2. Are residents permitted to use these bays?

3. Would the Strata be allowed to lease these bays to residents on a rotational basis and charge for the use?

Answer: You should work with the owners and the residents around the policing of the visitor bays and make sure it is clearly explained to them.

The first question, ‘Are there any formal avenues that can be followed to prevent the improper use of these bays?’ There is already a bylaw that says that you can’t park on the common property or obstruct common property. It is a very simple bylaw and expanding on that bylaw to have a more detailed car parking requirement in the use of the visitor base would be beneficial.

If they’ve entered into an agreement with the local council, it depends on what local council it is. Your inner city localities generally allow for the ability to put up the signs and then call a ranger to the site to issue an infringement. We find that that’s the best way to manage it. You should work with the owners and the residents around that policing of the bays and make sure it is clearly explained to them.

The strata company can restrict the use of the space. It is intended that they’re for visitors, not for permanent residents to park in. I think being a little bit more engaged with the local council around policing the bays would be beneficial.

The next question is ‘Are residents permitted to use these bays?’. When the schemes are approved there’s a requirement, probably under the development application and when the development approval is issued, that the scheme has visitor car parking bays. The removal of those car parking bays for the visitors would potentially require a development application to the local council, and it would be intended that those bays are exclusively designated for visitors. I would say that the residents aren’t permitted to park in the bay. You do need to have these visitor bays for when you have guests come around and visit you within your lot and you need somewhere for them to park so you wouldn’t want them taken up by residents parking there full time.

The last question is ‘Would the Strata be allowed to lease these bays to residents on a rotational basis and charge for the use?’. By and large, in a lot of schemes, the car parking bays are actually common property so a lot of schemes do actually lease their car parking bays. I would suggest that taking out the visitor bays to the scheme would be detrimental to the visitors coming to the scheme and I would encourage them not to lease out the visitor car parking bays and take them out of use for those people coming to visit them.

Scott Bellerby
B Strata
E: scott.bellerby@bstratawa.com.au
P: 08 9382 7700

This post appears in the September 2021 edition of The WA Strata Magazine.

Question: Can the council of owners enter into an agreement with the local council to issue infringement notices for visitor parking bay problems?

Parking for residents is in the locked basement car park of the complex. This area is common property.

The council of owners have entered into an agreement with the local council to issue infringement notices for parking exceeding 4 hours in the visitor’s bays unless the car is registered with the Building Manager. There is no scheme bylaw or resolution at the last AGM to do this. Is a bylaw needed to be passed to make these changes to common property?

Answer: With wheel clamping going (no longer allowed) and limited avenues to be able to police visitor car parking, entering into agreements with the local council is the best way forward for most WA Strata Companies.

It may be that there is actually a bylaw. The standard scheduled 1 and schedule 2 bylaw s, particularly schedule 1 bylaw 2 does talk about parking on common property. There may be something there that does talk to this problem. But ultimately, the functions of the strata company are to be formed by the Council as long as they have been authorised under Section 118.

It’s anticipated that you can’t obstruct common property. There is nothing prohibiting the council from entering into an agreement with the local council to help police the use of the visitor car parking bays as long as they have been authorised under Section 118 of the Strata Titles Act 1985.

Saying that, a bylaw does help clarify it all and it also provides some better structure around how the visitor base may be managed. I would certainly encourage them to think about registering a bylaw to that effect, but with wheel clamping going (no longer allowed) and limited avenues to be able to police visitor car parking, entering into agreements with the local council is the best way forward for most WA Strata Companies.

Scott Bellerby
B Strata
E: scott.bellerby@bstratawa.com.au
P: 08 9382 7700

This post appears in Strata News #494.

Question: We rent in a unit complex at the end of a long driveway. We have been told we are “not permitted to have any non residential cars come down the drive”. Is this reasonable?

My mother and I are renting in a unit complex down the back of the complex at the end of a driveway.

On occasions, cars come down the driveway to pick us up or drop us home. Irregularly someone may park in front of our garage out of the way of other vehicles.

The people living in the front units are part of the strata committee and have told us we are “not permitted to have any non residential cars come down the drive”.

We are starting to feel extremely hassled and uncomfortable with this matter. We’ve received a letter outlining the above in our letterbox as well.

Are these concerns reasonable and enforceable? Other unit complex’s we have lived in allowed us to have non residential cars drive down the driveway.

Answer: Could the strata company be behaving in an Oppressive, Discriminatory, Unreasonable or Unfair manner as per section 119?

First of all what do the current by-laws permit?

In any instance, traffic travelling down the driveway must be reasonable, that is:

• Are there an excessive number of cars going up and down the driveway?
• Do these extra vehicles block or obstruct the driveway?
• Are the cars noisy?
• Do the drivers of the cars get out of the car to notify you that they have arrived or do they sit there and honk the horn?
• A person simply arriving at your place doesn’t give them the right to park on the common property driveway if there are no visitor bays?

What happens in every other group of units doesn’t apply to where you currently live.

There are two sides to this storey.

If the number of vehicles is excessive or noisy or the people getting in or out engage in loud conversations, then possibly this could be disturbing other owners/ occupiers peaceful enjoyment.

The strata company is also responsible for the maintenance of the common property driveway and excessive wear and tear puts an additional cost on the levies and maintenance.

It is not known if there are any specific by-laws that deal with parking for your strata scheme but the standard by-laws

Schedule 2 Conduct

BL1 – “Vehicles and parking”

BL2 – “Use of Common Property”

BL12 – “Additional duties of owners and occupiers”

The other end of the storey could be that:

• You occasionally have other people arrive to pick you up and drop off?
• You have no car of your own?
• You are not driving and require people or service providers to pick you up?

The question is – Could the strata company be behaving in an Oppressive, Discriminatory, Unreasonable or Unfair manner as per section 119?

Is the strata company being reasonable in their request via the letter you received?

Are you causing a disturbance to other owners?

I trust this gives you a better understanding of what the other owners may be feeling or that you are creating interference with peaceful enjoyment?

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #444.

Question: Residents, including COO members, park on the verge and have damaged the retic. How do we stop parking on the verge?

Parking on grass verge in Perth, WA.

Does the lawn and reticulation which we installed and maintain on the verge come under common ground or other law?

Has the council of owners have the right to allow parking on the verge or does it have to be ratified by all owners? Our Council of Owners are some of the main offenders.

If it has to be ratified by all owners, would this have to be a majority or unanimous vote to allow parking?

Do the individuals responsible for damage have to pay for repair works to retic caused by the unlawful parking?

Answer: Any parking control on the verge would rest with the Local Council.

The verge is the area of land outside the boundary of the strata scheme and as such is outside the operation of the Strata Titles Act 1985.

The strata company is at liberty to install reticulation in the verge area (they may require Local Council approval to do so.

Any parking control on the verge would rest with the Local Council to either permit or prohibit verge parking as the verge belongs to the Local Council.

You could request to have the verge lawn recorded with the Local Council as a registered lawn where parking is not permitted.

One would hope that you could recover any damage to the reticulation system.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #408.

Have a question about how to stop residents from parking on the common property verge or something to add to the article? Leave a comment below.

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