Question: Our caretaker lets out his lot and is therefore not a resident. When working at the complex, he uses the visitor parking. Can he use the visitor parking?
Our Caretaker is also a lot owner. He lets his unit and carpark out and therefore is not a resident. He regularly uses one of the four visitor car parks when he is at work. Is he allowed to do it? Our by-laws state that owners are not allowed to use visitor car parks. Is he considered a visitor as part of his Caretaker role?
Answer: The visitor car spaces cannot be used by anyone other than bona fide visitors.
It is generally a local authority requirement that a scheme carries a certain number of visitor car spaces, and if this is the case, then the visitor car spaces cannot be used by anyone other than bona fide visitors.
The Body Corporate and Community Management Act 1997 (Qld) defines an occupier as (amongst other things):
- a resident owner or resident lessee of the lot, or someone else who lives on the lot; or
- a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot.
A caretaking service contractor would fall within the meaning of ‘occupier’ if they carry on a business from a lot within the scheme. If this is not the case, it would be necessary to establish that the caretaking service contractor is not a bona fide visitor for the purposes of the by-law.
The correct outcome largely depends on the circumstances of the particular matter, and adjudicators have found that a visitor is someone who is present temporarily on a lot or common property. In Picture Point [2004] QBCCMCmr 384 the adjudicator provides:
There does seem to be some uncertainty about who constitutes a genuine visitor to the scheme and will be entitled to use the visitor car parks. There seems to be a general understanding that occupiers of the scheme are not entitled to use the visitor car parks. However, 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.
As the caretaking service contractor must attend the scheme as its place of work, it does not appear to be a temporary arrangement. Accordingly, a caretaking service contractor is not likely to constitute a bona fide visitor and would be captured by the terms of the by-law.
This post appears in Strata News #570.
Holly Dunne
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
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