Question: Years ago our OC verbally agreed to residents parking on common property in front of their garages. Recently, they’ve issued a notice stating residents must not park on common property in visitor parking and the turning bay. Can the OC create different rules for different areas of common property?
We own a unit in a complex consisting of 17 units. This complex has 17 garages, 3 dedicated visitor spots, a turning circle and a dedicated wash bay.
We have 22 cars parking in the complex. For overflow parking, resident use visitor parking, the wash bay and the turning circle.
Recently, the OC sent a letter to all residents stating that no parking is allowed on the common property (i.e. visitor parking, the turning space and the wash bay).
However, a number of years ago the OC gave residents verbal approval to use the space in front of their garage for parking although this is also common property.
On one hand, we have a by-law the committee is trying to enforce regarding parking on some areas of common property, while at the same time allowing parking on other particular parts of common property. A previous strata manager stated the OC cannot differentiate between different areas of common property with different rules.
This issue is causing major angst. Is the OC doing the right thing? There are no clear procedure to follow indicating whether parking on common property is allowed.
Answer: Having conflicting positions on parking circulating around the scheme may lead to confrontation and dispute.
In the context of approval being granted verbally, the advice from your previous strata manager that there can only be one “rule” is generally correct. Technically, there may be more than one rule however the rules should be recorded in writing so that all owners are able to easily access and understand them.
The starting point is to review the by-laws in force for the owners corporation. Assuming the owners corporation has retained the model by-laws there will likely be a by-law prohibiting parking motor vehicles on common property without written approval of the owners corporation. Accordingly, assuming the model by-laws apply, verbal approval is insufficient.
It is important to ensure that you review the up-to-date registered version of the consolidated by-laws because it is not uncommon for owners corporations to repeal the model by-law in relation to vehicles and replace it with a differently worded by-law. There may also be special by-laws granting certain rights over parts of the common property.
The second issue concerns how the owners corporation, or whom, is granting the verbal approval. This is a problem because, for the reasons given above, there is likely no authority to grant verbal approval and having conflicting positions on parking circulating around the scheme may lead to confrontation and dispute. There is also the potential that a motor vehicle on common property may impede access to another lot, and this may constitute a nuisance.
Sending an informal notice to each lot drawing attention to the relevant by-law followed by discussion at strata committee meetings and general meetings should assist in clarifying the position. Section 146 of the Strata Schemes Management Act 2015 sets out how formal notice may be issued on an offender in contravention of a by-law. Section 147 empowers the NSW Civil and Administrative Tribunal to order the payment of a penalty. Your strata manager will likely be able to assist in issuing the notice, the owners corporation would best obtain legal advice prior to making an application in the Tribunal.
In relation to the proper procedure to follow to allow parking on common property, it depends upon the wording of the applicable by-law in force however there is the option for lot owners to obtain exclusive use rights or enter into a written agreement with the owners corporation to use designated areas of the common property. Ordinarily it is the responsibility of the person seeking use of the common property to obtain legal advice and make a proposal to the owners corporation. The decision to authorise exclusive use will need to be made at a general meeting.
If, for example, a special by-law granting exclusive use to park in a designated area is resolved by the owners corporation, technically this would create another “rule” in relation to parking a motor vehicle on the common property.
Care should be taken to review the conditions of development consent for the building and obtain legal advice prior to making changes to visitor parking or car wash bays as often these are mandated by the local council.
Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605
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