This article discusses whether a Queensland caretaker can lawfully claim exclusive use of a visitor car park, explaining approval requirements, risks, and options for committees where can a caretaker use visitor parking space without approval QLD is in dispute.
Question: Our caretaker has claimed exclusive use of a visitor car space that was informally allowed by a previous committee. How can the committee reclaim the parking space?
A previous committee allowed the former caretaker to use a car space and painted “Manager” on the space, effectively giving the caretaker exclusive use of the car park. This was never recorded in the minutes, put to a vote of the body corporate, or documented in the community management statement.
Our current caretaker started in 2023. The caretaking agreement and deed of assignment do not mention any right to use this car space. There is no change to the development approval or plan issued by the Council.
The current caretaker has placed traffic cones in the visitor car space to stop anyone else from using the space and refuses to remove them. The committee has advised that we have no record of any valid assignment of this space and has asked the caretaker for evidence, but the caretaker has not produced anything.
Do we let them use the space to avoid legal costs, as they’ve suggested? Should we issue a breach notice, or do we have other options?
Answer: Using interest-based negotiation (or even mediation, if it comes to that), it’s entirely possible that a ‘win/win’ can be generated.
A good place to start is, does the caretaker need the carpark to do their job?
For example, if the caretaker is required to be on-site during office hours or to transport garden waste to the tip, then the caretaker will need a guaranteed place to park. Likewise, if the caretaker is also a letting agent, they will almost certainly need a visitor’s space to enable guests to park while they check in.
If the answer is ‘yes’, then the better approach is to work out if the body corporate can grant the use of the car parking space correctly.
Caretakers, as service contractors and letting agents, are not allowed to acquire rights to occupy part of the common property for the purposes of doing their job under their engagement or authorisation, except by way of occupation authority.
Granting an occupation authority can be done at a general meeting, either by an ordinary resolution, or by including the occupation authority right in the engagement or authorisation.
So, if the use of the car park is needed for the caretaker to do their job, and there is no ordinary resolution or term of the engagement or authorisation granting the occupation authority right, then there is no valid grant.
If the caretaker does not need the car park to do their job, and the caretaker is a lot owner, then a licence, lease, grant of exclusive use, or transfer of the common property (i.e. the grant of some property rights) to the caretaker is required for there to be an enforceable right. Subject to a few fairly esoteric exceptions, all those rights can be granted only by the body corporate at a general meeting. If granted, they usually both require documentation and leave an obvious paper trail.
If there is no grant of one or more of these rights by the body corporate, the exclusive occupation of the car park by the caretaker amounts to an ‘ouster’ of all other lot owners. Each lot owner is also an owner of the common property, as a tenant in common with all other lot owners, pro rata their interest schedule lot entitlements. They are claiming rights of exclusive occupation and barring entry, ‘ousting’ the caretaker’s fellow lot owners, which is a fundamental breach of their rights as co-owners.
Now, while the above covers the two most common cases (occupation authority versus grant of property rights), before resolving the matter through negotiation and/or litigation, be sure to check the development approval for the scheme.
Development approvals almost always require a specified number of car parking spaces to be available for visitors. If those spaces are not available and Council becomes aware of it, the body corporate can expect a ‘show cause’ notice from Council regarding a breach of the relevant development approval condition/s.
As the ‘owner’ of the common property for the purposes of the development approval, it’s up to the body corporate to make sure there is no breach of the condition.
With the development approval in hand and an exhaustive search of the body corporate records completed, a committee member, as liaison, can sit down with the caretaker and discuss the issues. Discuss what the caretaker needs and what the body corporate needs. Using interest-based negotiation (or even mediation, if it comes to that), it’s entirely possible that a ‘win/win’ can be generated.
I have seen similar situations resolved through the application of goodwill and intelligence in the context of both parties having access to good quality information. For example, and strictly as a hypothetical, could the caretaker relinquish the car park for use by visitors in exchange for constructing, at the caretaker’s cost, a new car space in a better location for the caretaker, which, when constructed, is granted to the caretaker as an occupation authority?
While in this case it certainly appears that the caretaker is ‘in the wrong’, fighting about the validity of the caretaker’s de facto exclusive use right is good for no one but the lawyers involved. The better option is to get the facts, have the discussions, and put in the hard work to reach a better solution where both parties win.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
This post appears in Strata News #776.
Have a question or something to add to the article? Leave a comment below.
Read next:
- QLD: Caretaker, Committee and Body Corporate Manager: Re-setting the Working Relationship
- QLD: Q&A Management Rights – Caretaking and Letting Agreement + Extensions
- QLD: Caretakers and maintenance responsibilities
Visit our Building Managers, Strata Parking, Maintenance and Common Property, Strata By-Laws and Legislation OR Strata Legislation QLD.
Looking for strata information concerning your state? For state-specific strata information, take a look here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.