These Q&As are about whether a body corporate can lease out their visitor parking spaces in QLD.
Table of Contents:
- QUESTION: A lot owner has placed semi-permanent sheds over some visitor car parks. To resolve, can the body corporate put a lease in place while still not conducting a business? Aren’t they conflicts?
- QUESTION: Can you please advise if there are strata parking allocation laws regarding how many car parks and how much guest parking is required in a block of units?
- QUESTION: Our body corporate would like to lease out around half of our visitor parking spaces. Are we able to do this and what legal hurdles do we need to overcome?
Question: A lot owner has placed semi-permanent sheds over some visitor car parks. To resolve, can the body corporate put a lease in place while still not conducting a business? Aren’t they conflicts?
Answer: The first issue when visitor parks are involved is whether a different use is going to contravene the council’s development approval requirements.
The first issue when visitor parks are involved is whether a different use is going to contravene the council’s development approval requirements. Most of the time this will be the threshold problem.
Putting that threshold problem to the side for a moment, leasing common property does not always amount to carrying on a business. The body corporate is permitted to carry on business-like activities in discharging its duties and functions. Leases normally fall within that category.
Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753
This post appears in Strata News #448.
Question: Can you please advise if there are strata parking allocation laws regarding how many car parks and how much guest parking is required in a block of units?
Answer: I believe it is the local Council that sets the strata parking allocation. They are responsible for requirements relating to the number of visitor parks a complex has, and this would be done when the development approvals were being processed.
Kelly Borell
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #102.
Question: Our body corporate would like to lease out around half of our visitor parking spaces. Are we able to do this and what legal hurdles do we need to overcome?
We have approximately 100 units in a 5 year old building in Brisbane. Our visitor parking spaces are being used by just about anybody in the area for free parking!
We have 23 visitor parking spaces and are thinking of leasing 10 of them out to neighbouring businesses.
This would give us an extra $26,000 a year which we could use to benefit our building and our unit holders.
Are we able to do this and what legal hurdles do we need to overcome?
Answer: The Body Corporate will first need to contact its local council.
The Body Corporate will first need to contact its local council to obtain details of the required number of visitor car parks for the scheme, which usually forms part of the scheme’s planning/development approval. It will be important that the scheme retains a sufficient number of visitor car parks as per the council’s requirements for use by visitors to the scheme.
The Body Corporate would then need to enter into leases with the relevant businesses. This would require a special resolution for a term of 3 years or less for Standard Module and 10 years or less for Accommodation Module, or alternatively a resolution without dissent.
Additionally, the Body Corporate should update its by-laws (special resolution) as regards the use of the visitor parking and ensure that only the lease holder (and those it authorises) obtains access to the car park.
A Body Corporate must not carry on a business (s.96 of the Act). However, there are cases in which adjudicators have determined that the Body Corporate is able to require a fee or rent be paid in consideration for a leased area of common property.
Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000
This post appears in Strata News #290.
If you have a question about leasing out visitor parking spaces in QLD or something to add to the article, please leave a comment below.
Read More:
- QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors!
- QLD: Q&A I Don’t Live Here. I’m Only Visiting…Every Night
- NSW: Q&A Adequate ByLaw to Combat Abuse of Visitor Parking Spaces
Visit our Maintenance and Common Property, Strata Parking OR Strata Legislation Queensland pages.
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.
I would have thought that visitor parking spaces are part of the common property and any exclusive use of the common property must be subject to owners approval by vote at general meeting by a motion without decent.
Hi Wayne
Thanks for your question about leasing out visitor parking spaces. This response from Peter Hunt, Mathews Hunt Legal:
Leases and licences are permitted with lower thresholds.
Good advice Hayley. Thankyou. An additional consideration for the owners is the potential tax consequence of such a move. The ATO’s Taxation Ruling 2015/3 explains that income derived from the leasing of common property is required to be declared in the tax returns of the individual lot owners in line with their unit entitlement percentages.
ie: it is not declared in a strata / body corporate / OC tax return. The ruling goes on to explain that this remains the case even when the money is not distributed to the individual owners.