A resident's large 4WD overhangs their car space onto common property — what can the body corporate do?

As vehicles get bigger, issues like this are more and more common. Unfortunately, the resolution isn't straightforward.

From a technical perspective, the lot owner is only allowed the use of the car space up to the specified dimensions of that space. The exact size should be listed on the CMS or you can look at the plans for the scheme. Sometimes, they only state the total space in square meters, and sometimes you get the exact length and width. It's worth checking these details to be sure the vehicle is encroaching on common property space rather than just looking at the line markings which may or may not reflect the plan.

If the vehicle extends beyond the dimensions of this space, it is encroaching on common property and it is reasonable for the body corporate to take action.

Most by-laws will have a clause that can be used to indicate a by-law breach. The standard schedule 4 by-laws 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.
4. In this section—

"regulated parking area" means an area of scheme land designated as being available for use, by invitees of occupiers of lots included in the scheme, for parking vehicles.

If you followed those it is possible that the owner could apply to have an oversized vehicle but there would be no reason for the body corporate to grant this approval.

If your parking by-laws don't cover this then perhaps you could look to pass a new by-law on parking. You can also consider whether any of the other by-laws you have may apply. For example, by-law 3 of the standard by-laws states:

3 Obstruction

The occupier of a lot must not obstruct the lawful use of the common property by someone else.

You can also consider whether the owner is in breach of the Act or module for your scheme. The parking could be considered a nuisance or a hazard. Section 167 of the Act could apply – it states:

167 Nuisances

1. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that— 
    
   1. causes a nuisance or hazard; or
   2. interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
   3. interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
2. Without limiting subsection (1) , the occupier contravenes this section if— 
    
   1. the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property of the scheme; and
   2. an occupier of another lot or an invitee of the occupier of the other lot, or a person who is lawfully on the common property, is regularly exposed to the smoke or emission from the smoking product— 
       
      1. in the other lot; or
      2. on the common property.

So, the law is likely to be in favour of ensuring vehicles are parked within the dimensions of the allocated space.

The difficulty comes with enforcing this. Here you can issue by-law breaches notice or perhaps take the owner to the Commissioners office if they don't park the vehicle correctly.

You could also look at out of the box solutions – maybe fencing could be added to help define the allocated space. And, you could look at having the vehicle towed, although this is easier said than done.

If it was me, I would start with a polite letter to the owner from the body corporate explaining the problem. Maybe some careful parking could help alleviate the issue. Perhaps there is some compromise position that could work for all parties.

However, if the owner refuses, it may be worth seeking legal advice to help define the issue for the owner and the body corporate.

Lastly, the owner might say there is nothing they can do because they can't change their car. This is not correct – they can park somewhere else where their car does fit. Ultimately they should know the size of the space allocated to them when they bought the property or vehicle. If they didn't understand, that is their problem not the body corporates.