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.
This post appears in Strata News #629.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753