Question: In our high-rise apartment complex, an owner seeks ongoing approval for his daughter to park long-term in visitor parking, claiming she is the mother’s carer. Should the body corporate grant this request, considering potential complications and the need to enforce parking rules among residents consistently.
In our high-rise apartment building, each lot in the complex has allocated parking spaces plus visitor parking spaces with a 4-hour parking restriction.
Our caretaker provides vouchers to residents who have overnight visitors, and this solution has been effective. Recently, an owner requested ongoing approval for his daughter to park in the visitor parking space long-term. The owner claims the daughter is the mother’s carer, but no documentation supports this. The owner has been issued month-long vouchers and now seeks indefinite approval.
Should the Body Corporate adhere to the 4-hour limit and continue providing overnight vouchers, or should they consider the owner’s request? There is a limited number of visitor parking spaces, and granting long-term approval may encourage others to request the same for various reasons. Other owners have NDIS carers who comply with the rules, so why should this owner be treated differently?
If the body corporate rejects the extended approval, can the owner take the matter to the Tribunal for an adjudicator to decide?
Answer: Grant enough exceptions, and pretty soon, you won’t have a system at all.
So many schemes have problems regulating parking and yet here it seems you have a practical system that is functional and accepted.
Is it worth overturning that for one owner?
That’s a choice for your body corporate. If you start making changes for one individual, you should probably make them for all car park users. As you indicate, people may feel they have a valid case for an exception. Grant enough exceptions, and pretty soon, you won’t have a system at all.
As you identify, there is some risk in refusing the request. The owner might challenge the body corporate’s position via the Commissioner’s Office. If they did, any judgment may not be in your favour. It depends on who you ask, but by-laws with time limitations may be a step too far for adjudicators.
Still, it is up to the owner to make that challenge. However, if they’re successful, it might be more difficult for the body corporate to regulate visitor parking. The owner’s daughter can easily access the visitor spots from your description. They just need to apply for their monthly pass. If the system was deregulated, access to that facility could be less consistent as evidenced by the multitude of sites that struggle to control visitor parking with the outcome that many report that actual visitors can’t get a space. Perhaps some discussion with the owner about this and the options may be the best next step, and hopefully, a reasonable position can be agreed upon.
If the owner is asking for permanent use of a common property space, they are asking for the space to be designated for their use via an exclusive use by-law or (less likely) via a property transfer.
For the exclusive use of the space, a by-law must be drafted and voted on at a general meeting. Most likely, the owner would be required to pay for drafting the by-law. Approval would probably be via a motion without dissent, so the matter wouldn’t pass if one owner voted against it. The owner would probably also need to receive consent that the Council has no objection to the body corporate reducing its allocated visitor parking spaces.
If this sounds quite difficult to achieve, it gives you an idea that what the owner may perceive as a simple request isn’t straightforward.
Providing guidance on how to address the owner’s concerns through the Commissioner’s Office is beneficial, as failure to exhaust available resolution options may hinder the progress of any potential legal claim.
It’s important to note that the remit of the committee does not extend to allow them to grant one owner use of the common property permanently.
And even if they did, it’s not recommended to grant individual owners greater use of the common property than they are paying for or in excess of other owners.
As your question correctly notes, other owners at the site may also want additional parking utility. Almost everyone does and they all have reasons that are important to them.
This isn’t to say that body corporates shouldn’t act with compassion when required or where possible.
The committee can grant temporary use over the common property, and I’ve dealt with sites that have granted owners extra use of a space to help with things like broken legs, pregnancies and various other ailments. It’s good for the body corporate to be amenable and help out, but that’s quite different from granting permanent additional rights.
This post appears in Strata News #682.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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