Question: We are in a large building with a car park in the basement. Owners have exclusive use car spaces. The builder sold off the management of the car park to a contractor. There are many parking issues but the contractor will not assist. What can we do?
We are in a large building with car park lots in the basement. Owners have designated spots with “exclusive use rights”, and the parking spot is on the title attached to the apartment. The original owner/builder sold off the parking lot section along with other commercial lots to a private investigator and the parking is managed by a contracted company.
Apartment owners pay a “parking lot levy” for ongoing exclusive use, which doesn’t make much sense and many residents aren’t aware before moving in. There had been many issues in the car park, including thefts and dangerous driving with excessive speed. Recommendations had been sought from safety consultants, such as installing safety mirrors and speed bumps, however, the new car park owner shows no interest in collaborating with the residential body corporate to implement any recommendations.
It is getting to the point of serious safety concerns. I am a committee member and would like to explore our resident’s rights in this situation, and the legality of our withholding levies until the commercial lot owner complies.
Lastly, is it even legal when the parking spots on our title are collectively sold by original owners without consent from residential owners and body corporate?
Answer: Ask whether the contract is being adhered to. If not, what avenues of redress are available?
It’s not unusual for schemes, particularly larger sites where there is a mixture of residential and commercial occupants, to have a third party engaged to assist with managing the car parks.
So, without seeing all of the documentation, we would presume that arrangement is likely to be legal. And, in that case there is likely to be a governing document – a contract or management agreement – that sets out the responsibilities of the parking contractor and how they relate to the management entities – your body corporate and any others – of your building.
To understand your position you will need to review those documents and we recommend that you engage a strata specialist solicitor to advise the body corporate on your rights and what pathways you have available to redress issues with the parking contractor. This would probably include advice on which party is responsible for addressing maintenance and safety concerns in the car parks and how concerns can be communicated. The contractual documentation should set out a process to manage these issues and most likely the best thing to do is follow the process.
It’s not easy, but it helps if you can put aside notions of what you want to happen or think should happen and focus only on your legal position and what can happen.
If you are focused on issues such as owners not being aware of the situation before they move in, it is unlikely to help you bring resolution. The rule of caveat emptor – buyer beware – applies here, so it is not really an issue of concern to the parking contractor.
Equally, and provided your solicitor advises there are no issues with the sale of the parking rights, it doesn’t really help you to spend too much time thinking about whether the set-up is right or good. If you want to have that debate, write to your MP and maybe they will take up the issue for you. Once something is legal, you really just have to think about the contracts, whether they are being adhered to. If not, what avenues of redress are available? It’s a bit of a cold way to think, but it is how your issues will be resolved.
This post appears in Strata News #689.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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