Question: A lot owner rents out their unit but uses the attached marina berth to moor their boat. Should they park in a visitor parking space when they use the boat? Sometimes, friends accompany them and also use the visitor parking space.
Answer: An owner will not be a visitor, even when they do not occupy their lot at the scheme.
Generally, visitor parking must remain available at all times for use by visitors to the scheme. The adjudicator in Sailz Whitsunday [2009] QBCCMCmr 305 explained:
“I am of the view that if a local government requires that a certain number of spaces or areas are provided for visitors to residential units, then such spaces must always be available. … They must be there to accommodate visitors’ cars and to prevent congestion and on-street parking where the scheme is required to provide off-street parking. That must be the point of a visitor’s car park.
Unless specifically stated, I am of the view that visitor car parking must be freely accessible to visitors with no encumbrances.”
An owner will not be a visitor, even in circumstances where they do not occupy their lot at the scheme. This is because:
- Section 35(4) of the Body Corporate and Community Management Act 1997 (Qld) relevantly provides:
If the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.
- adjudicators define visitors as those who call upon occupiers.
Accordingly, this owner will generally have no right to park their vehicle within a visitor carpark at the scheme or moor their boat (unless this was not part of the tenancy arrangements with the occupier).
The enforcement action available to the body corporate in respect of this conduct will, however, depend upon the terming of the relevant by-laws for the scheme, or if it wishes to rely only upon the legislation in this regard.
This post appears in the April 2025 edition of The QLD Strata Magazine.
Connor Mahoney
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
Our strata scheme has 40 units in duplex configurations. Approximately half of the duplexes have a common property driveway access of sufficient length to park a vehicle in-front of the unit. The other half do not, There are 26 Visitor Car parks throughout the complex. The by-law related to parking states
2(1) The occupier of a lot must not:
(a) Park a vehicle, or allow a vehicle to stand on the common property in a manner likely to interfere with the peaceful enjoyment of other occupants OR
(b) Permit an invitee to park a vehicle, or allow a vehicle to stand on the common property except in the visitors spaces allocated.
We have several occupants with two cars. Some park additional vehicles in the driveways where they can be accomodate. Some are parking in the Visitors park as it appears it is not prohibited by the by-laws. Conversely visitors parking in the driveways in front of units does appear to be be prohibited by the by-laws. Clearly the bylaws need to be refined and the committee is in the process of getting the information from Council as to the requirements for regulated Visitor parks. And intends to submit new bylaws to the next AGM. However under the current by laws can the committee request an occupier not to park in the Visitor parks.
Hi,
We have responded to your comment in the article above.
Thanks,
Will Marquand
Thank you for your reply William. When I read the by-law I didn’t draw the conclusion that someone parking in a visitor spot would be likely to interfere with a lot owners peaceful enjoyment as we have so many spots available. Your comments are much appreciated as they have given me insight to see the situation as an adjudicator might. As you also noted our by-law is vague and confusing and we still have the challenge of what to do with visitors and lot owners parking in the garage driveways that are long enough to accomodate vehicles. I can see now why parking becomes one of the most common and frustrating problems in strata.
Hi Sharon
Will Marquand, and another regular contributor, Todd Garsden from Mahoneys recently recorded a webinar with LookUpStrata about QLD solutions to parking problems. It provides a variety of creative solutions to assist in solving parking issues. The recording of the video can be viewed here: https://youtu.be/9mPUCGRp2b0
Thanks Nikki, ill definitely check it out as we have to rewrite our by-law.
Re LookUp #570 and Holly Dunne of Mahoneys about the Caretaker who rents out his own carpark then uses a Visitor Carpark for personal parking on an ongoing daily basis.. Would it be possible to expand Holly’s advice to include the Caretaker/Rental Manager’s staff, eg cleaners, janitors, who use the Visitor Carparks almost every weekday and often on weekends…for extended periods of the day.
Hi Ross
We have responded to your question in the article above.
Hi,
I am one of the owners in the same complex Shane mentioned in a comment this post a few years ago. [A private contractor] was engaged by the committee to enforce visitor parking compliance in our 110-unit complex by issuing “breach of conditions notices” valued at 77 dollars each for offending occupiers parked in the visitor park. The problem is that [the private contractor] often mistakenly demands payment from genuine visitors as they cannot tell the difference between occupiers’ vehicles and visitors. I am afraid the body corp is breaching the Act when delegating powers to [a private contractor] which in turn demands payment without issuing a notice of contravention. What is the correct course of action against the body corp mischief?
Hi,
We are an apartment building of 14 units. There isn’t currently allocated visitor parking or a wash bay, is there a legal requirement to have this?
The building units plan is from 1981 and doesn’t stipulate what common areas are, only the garaged allocated spaces.
How might we go about getting clarity on allocated spaces./common areas and what might constitute breaking the by-laws if there isn’t a clear outline?
Thank you so much.
Hi,
We received an email today from our new real estate agent telling us the body corporate have complained about my partner and I parking in the visitor car park, and that if we park there again we will be issued with a breach notice.
First we had no idea that it was a visitor car park as there is no signage at all, and were told by the previous real estate agent that we could use the parking.
Secondly they are wrongfully accusing us of parking both our cars there, however it is not true. The person complaining took a photo of my partner’s work car and someone else’s car parked there and said that both cars were ours.
Thirdly, all residents of the apartment complex are using the two “visitors” car parks, which explains our confusion.
We never received any letter from the body corporate asking us to stop parking there, or notifying these two car parks were for visitors only.
We will obviously won’t park there anymore as we have now been notified they were visitor parks, but we feel like we are being wrongfully accused and bullied as we are the only tenants, and owners live in the other apartment of the complex.
We also feel threatened and bullied by the real estate accusing us of owning these two cars without any proof, I have been under a lot of stress all day because of these situation and don’t know how to approach it.
We have a unregistered vehicle dumped in our visitors car park, and the lot owner says they need it for spare parts, for their registered vehicle. They refuse to move it. Where do we go from here? Neither Police or Council are interested.
Hi Annie
The response by Frank Higginson to this question should help: Question: How do you remove an abandoned car on your property? Can we tow the car?
There has been a tenant car parked in our visitors car park since march 2020 the owner claims her tenant is stuck in overseas due to Codvid and the car should not be touched.the owner lives in the complex and claims that the tenant boards in one of her rooms.. should she be breached and seek an order from the commissioners office , letters not breaches have already been sent.
Hi Adele,
I’ve responded to your question in the article above.
I am a committee member on a Body Corporate with 8 town houses.
Currently one of our committee members is using two visitor car parks, one to park his car on a regular basis and the other car park to store an industrial pallet jack, capable of lifting substantial loads of industrial waste onto a truck.
He runs an asbestos removal company and we have reason to believe he is storing asbestos material in plastic bags in this body corporate area which is not secure and literally anybody from the street could access this potentially hazardous material.
This is clearly breaching a number of bylaws, statutory laws regarding storage of hazardous material and zoning laws regarding conducting an industrial business in a residential area.
The activity is noisy, dangerous and presents a risk to the body corporate and also neighbouring properties.
We are also deeply concerned about the Body Corporate Public Liability insurance aspect of running an industrial business and storing hazardous materials on Body Corporate property..
Would we be liable if anything happened to the hazardous material?
What happens if. someone is injured on Body Corporate property whilst he is operating and working in the body corporate area?
This is clear abuse of body corporate property which is affecting lives of the residents wanting to live in peace and not exposed to risk.
He is generating income at our expense and we have had enough.
We need a strategy to prevent him from running an industrial business from a residential area.
Hi Andrew
The following response has been provided by Chris Irons, Hynes Legal:
I can’t comment on the insurance liability side of things, you may need to address that with your broker or insurer (although, of course, doing so could in and of itself cause a problem). I wouldn’t advise waiting to find out though, as clearly there are issues now to address.
In terms of what to do, I would suggest it would be enforcement of by-laws and/or a dispute regarding nuisance. The onus is upon the complainant (e.g., committee) to attempt to resolve this themselves first. Assuming you can’t, or that you’ve already tried to do so without success, then your next step is to apply for dispute resolution through the Commissioner’s Office.
I live in a 110 unit complex, and the committee appears to have never actually taken action over the car parking on site, apart from the occasional newsletter. Many owners and occupiers use the visitor car parks from time to time. Most of us do not have an issue with this. I have not seen any notes in Body Corporate minutes regarding any enforcement by issuing the correct forms, and now they have decided to allow an outside company to enforce the carpark. Is this actually permitted? Reading many articles I would not have thought so. It appears limits are difficult to enforce as a visitor is a visitor, and parking is available to them. This is not a commercial car park, and the outside company have no legal right to issue fines. Where do we stand as owners? Where do other occupants stand?
Hi Shane
The following response has been provided by Chris Irons, Hynes Legal:
It’s not entirely clear from your query what’s occurred, but it seems as though an outside contractor has been engaged to regulate parking. Your first step is to find out the terms of that – are there any minutes about it or do you recall being asked to vote on the concept (if you’re an owner)? There may be several actions which follow depending on what has occurred there. For example, there are restrictions on what the committee can and can’t do in relation to deciding upon proposals and use of common property. It would also depend on the terms of the contract with the contractor.
Putting that to one side, it’s almost irrelevant whether or not the contractor is there because at the end of the day, it remains the committee’s responsibility to enforce the by-laws in relation to parking and they can’t delegate out that responsibility. Your query doesn’t actually say what the by-laws are but it seems as though there’s been a bit of a casual approach to parking up to now. You need to lay your hands on the by-laws, if you don’t have a copy then you can obtain them from the Titles Office. If you’re an owner then you can propose changes to the by-laws at a general meeting. If you are wanting by-laws about parking to be enforced, you can go through the process of having the body corporate (via the committee) to do that or, if the body corporate won’t, you can pursue that yourself through dispute resolution through my former Office.
If you’ve got designated visitor car parks then owners and occupiers shouldn’t be using those, regardless of whether everyone is ok with that. It may be a breach of the conditions of development of the building and lead to issues with the local council.
Hi, there is an owner in my apartment building (of 9 units) who regularly lets his unit out for Airbnb purposes, and his partner regularly comes to prepare for/clean after their Airbnb guests and parks in the one and only ‘Strictly Residents Visitors’ carpark – despite the fact she can use their own garage allotted to that unit,
Should she be using her the units allotted garage or is it okay for her to use the visitor one?
Thanks for all advice
Hi Julie
The following response has been provided by Chris Irons, Hynes Legal:
Interesting query. Maybe she is a genuine ‘visitor’ if she is indeed ‘visiting’ the scheme on an ad hoc basis. Your email suggests that she and her partner (the owner) are neither co-owners nor living together, so potentially she is a genuine visitor in that sense and I don’t know that your argument that she use her partner’s car park would hold up if so.
That said, if the ‘visits’ are pretty regular and last a long time then maybe she starts to veer away from being a ‘visitor’ and into ‘occupier’ territory, which is a different story. There’s no definition of visitor in body corporate legislation and so no legislated threshold about the number of visits you have to make or hours you have to spend to be considered one. There are, though, several adjudicators’ order about the issue and I’d suggest you have a look at those at Australasian Legal Information Institute.
I’d be keen on other readers’ views on this one.
Putting all the above aside, if you or the committee concluded that she was indeed a ‘visitor’ and breaching by-laws (see below for a qualifier on that), by-law enforcement could then happen but I’d recommend that be carefully considered first. It can be costly and time-consuming. Legal advice might be a good idea if there’s any uncertainty.
Another thing you can consider is whether your by-laws are fit for purpose. Can your scheme’s by-laws around parking do with a bit of a review, perhaps?
Can the committee just convert the visitor parking into other usage? the committee in our complex decide to convert one of the visitor car parking into a “common rubbish bins” area.
Instead of having all the council bins of all the units sitting in the side of the driveway, they are to put in 1 of the 3 visitor parking space with a gate installed.
Wouldn’t it change the floor plan of the complex and the rate of the parking space within the complex?
Hi Queenie
We’ve just received this reply from Todd Garsden, Hynes Legal:
The committee can convert visitor parks into anything else by authorising an improvement – depending on the costs a general meeting might be needed though.
However, the council development approval commonly sets requirements for visitor parking. Sometimes this includes minimum numbers, the location of the parks or even requiring approval for any change to them. Before the committee looks at changing a visitor car park it should confirm with council (or a town planner) whether there are any council requirements or restrictions.
Our committee are under the impression that our caretaker and his family members has the exclusive right to two of our approximately 25 visitor car parks.
I can find no record of the change being approved by checking with Queensland Titles
I did find a mention in the committee meeting minutes dated 2006 where the committee were advised by BCCM that it was not possible.
I expect the matter was then dropped.
What action can lot owners take to rectify the situation ?
We are accomodation mode.
Hi Charles
The following response has been provided by Todd Garsden, Hynes Legal:
Not all car parking rights need to be registered with the titles office. For example, the caretaker may have been granted an occupation authority to park on the common property. Such a right only needs approval by ordinary resolution and is tied to the term of the caretaking agreement. However, any such right:
1. Must not contravene the development approval conditions applicable to the scheme; and
2. Can only be used for the purposes related to performing the caretaking duties.
Lot owners should ask the committee or caretaker where the manager’s right to park vehicles exists. If no right can be produced then owners will be in a better position to understand their rights.
I take it from the wording of the last paragraph that if no evidence can be produced then the caretaker has no rights to park on the parking spaces in question ?
This change to the parking clearly contravenes the initial development of the scheme.
And the committee can only change this by a motion at an AGM without decent. ?
This is all very well – we know what the bylaws say and what enforcement should occur. But what about when the committee chairperson says “I don’t care who parks where or on the grass – I park my second car in a visitor park” (They have 1 single car garage and 2 cars – one car is parked in front of garage and second car in a marked visitor park constantly). Visitor parks are at an absolute premium with none available for true visitors most of the time. What hope do we have of improving parking issues with such a “don’t care” mentality. If committee members can’t follow the rules, how can we expect residents to? Even when offenders have been breached in the past they ignore the notices and carry on regardless.
Hi WKirby
Thanks for your comment. We have received the following reply from Todd Garsden, Hynes Legal:
Committee members aren’t above the by-laws and owners and occupiers have rights in the Act to ensure by-laws are followed (including by committee members) if the committee does not take action.
Hi, I’m hoping for some advice please on how our complex can best manage a parking issue that’s arisen. We are a boutique complex of 39 units, with 9 visitor bays. Recently, another townhouse complex has been constructed immediately next door and it only has 2 visitor bays. Each day, our complex’s visitor bays are now taken up with vehicles that belong to the complex next door (whether owners, tenants or visitors – they do not belong to our complex). I’ve personally seen neighbours from the adjoining complex park in our complex then walk across to the complex next door. I’ve spoken to several and asked them not to park in our complex as it is private property, however they ignore this.
I’ve raised this with our on-site Manager and Strata Manager who have advised that we can install signs as a deterrent for the neighbouring complex to not park in ours, but that we cannot (or should not) tow the vehicles. Our Strata Manager advised “Towing in a Body Corporate is not recommended as any liability regarding the action of towing is at the liability of the Body Corporate.”
This seems completely ridiculous as these drivers are trespassing on private property! Some advice on the laws here would be most appreciated.
Hi Benita
We’ve received the following response back from Todd Garsden, Hynes Legal:
We tend to agree with the body corporate manger’s approach – towing a car is very difficult to do lawfully. The body corporate needs to (among other things) show that they had consent to tow the car.
What we normally recommend to start with in this situation is to try signage, then physical impediments such as a boom gate or otherwise to access the visitor parks. The committee should ensure that any of the action it takes is not contrary to the development approval (which in some cases requires the visitor car parks to be left unobstructed).
It is indeed a difficult and frustrating position for bodies corporate but towing a car always comes with risks.
Thankyou, we were starting to feel there was no hope.
We now have a owner family who use every visitor car space. They ignore any requests to move them, and simply add yet another car, should our body Corp send them form 10? We are at our wit’s end. The Gold Coast Council is not interested, nor are the Police, what do we have to do to move them out? Our Body Corp office has tried everything to get them to just use the two spaces they own, but nope, not interested. Seems the law is on their side. And we have to wear it. Any ideas?
Hi Annie
We have received the following reply back from Todd Garsden, Hynes legal:
There is only one answer here and it is for the committee to enforce the by-laws. That starts with a contravention notice but a form 10 isn’t going to get you very far. That is to stop a breach from happening and as soon as the car is moved the form 10 has been complied with. A form 11 is going to be the better way to go as that stays in force and is contravened once the car is re-parked in the area. If the contravention notice is not complied with then the Commissioner’s Office can make orders preventing the parking. This is where the committee needs to end up to have any outcome that has some real impact as breaches of adjudicator’s orders can end up with significant fines.
Thank you. It’s now 2021 and we still have the same problem, only they have added speeding within the complex as well. The owner, who has two spaces, wants us to give up a visitors car park for her children to use, as they now have three cars. She maintains the Visitors Car Parks don’t get used enough, to warrant keeping them. We have in our bylaw five visitors car parks for fourteen units, and we certainly do use them, for genuine visitors, tradesmen, and home care. The Police cannot stop the speeding because it’s on private property and we can see a head on eventually happening, or a resident injured or killed. We have tried, Police, Council, but nobody seems terribly interested. It is really affecting the elderly owners in the complex. ANY HELP would be appreciated in our struggle to return to a peaceful environment, as the engines on these cars have been souped up, to make a awful sound. The people are belligerent, if approached.
Hi Annie
We have written about speeding on private roads here:
QLD: Q&A Enforcing and Policing Speed Limits on Private Roads
All the best
Thank you, for your help.
Hi
I live in an 8 unit complex with six visitor parking that are mostly empty we have limited space to exit our garage and leave the property the problem is there is often a visitors car not using the correct parking in front of our garage blocking us in we have asked and asked them to tell there visitors to use the correct parking but they fail to do so have complained to housing but nothing is done can i do anything to prevent this
Peter
Hi Peter
We have received this reply from Todd Garsden, Hynes Legal:
It would be asking the committee to enforce the by-laws. Most of the time there will be an obstruction by-law that prevents this. A BCCM Form 1 can be completed formally requesting this action. BCCM Form 1 – Notice to body corporate of contravention.
In connection to towing and visiting time limits, my body corp has cars towed at 2am or so that wake me and others with the racket. Can that be prevented in itself? The committee believes it can. All three things look to be wrong.
David H
Hi David H
Thanks for the comment. We have received the following reply from Todd Garsden, Hynes Legal:
I suspect it can be stopped – there are a few angles to this.
– Whether the towing itself is causing a nuisance
– Whether the towing is lawful
If I were being woken up regularly in the middle of the night I would count that as nuisance. Whether the towing is lawful depends on the signage, whose car it is and what authority of how it is taking place.
Hey! I’m a tenant in a residential building. The body corporate has apparently just passed a by-law allowing a 3rd party company to issue on-the-spot invoices to any vehicle parked in the visitors carpark if it doesn’t have a “visitors pass” displayed. Visitors passes have to be printed out by residents (too bad if you don’t have a printer!)
It makes sense to me that BC might be able to stop residents from parking in the visitors areas, but can they allow a 3rd party to fine bona fide visitors? That seems crazy!
If not, how would I, a tenant, go about challenging this Body Corporate rule? How do I find out who the adjudicator is for my building and how do I start the adjudication process? Residents have been putting up signs in the lift expressing their disappointment with having family and friends fined for visiting.
Hi confused student
We have received the following reply back from Frank Higginson, Hynes Legal:
A body corporate cannot impose monetary penalties in a matter like this. All they can do is go through the by-law breach process, and take action as authorised by the Commissioner’s office. Any fines are simply worth less than the paper they are written on.
This has been interesting reading indeed. I have a unit in an 8 unit complex. I have lived there approximately 18 years. When I first moved in there were “visitor car park only” signs (two or three from memory). In recent years those signs have worn away but all owners are fully aware that their purpose in those parks was for visitors. One of the unit owners has two vehicles and for whatever reason does not use his garage (every unit has a one car garage). All other occupiers, whether owners or tenants, are using their garage. However the owner of two vehicles is persistently using both visitor car parks for their use. I have approached them several times but am being ignored. I have started the first leg of a seemingly lengthy process with the Body Corporate but I suspect this fairly tedious (and possibly expensive) process may be a waste of time and money. It simply isn’t fair that somebody can abuse the system and without cost and angst by other occupiers, may very well get away with it.
Your response would be greatly appreciated.
Thank you,
Lorraine
Hi Lorraine
Thanks for your question. We have received the following reply back from Frank Higginson:
If your by-laws deal with visitor parking properly then, while the process may be tedious, you will almost certainly be successful. You are right though in terms of them getting away with it if no one does something about it, because that is how the system works. There are no body corporate police running around enforcing by-laws. It falls back to the occupiers of the schemes themselves.
HI we have 14 unit strata complex in Queensland,
2 units have double car bays
12 units have single bays although extra deep some up to 8 mtrs that could almost fit tandem parking if they had small cars, and
5 Visitors bays.
All units are rentals.
Q.1 Do we need to have all 5 as visitor bays?
Q.2 Can we seek permission from Strata to lease 1 car bay for 1 month?
Some additional Info sent to SM.
Most units are 2bed x 2bath x 1 car – Other than unit 1 & 6 that already have 2 car bays.
I presume some tenants already have 2 cars and illegally utilising the visitors bays as their own.
Now I paid extra for my Unit #1 with a two car space and this sometimes aid in reletting my unit for the 2nd car space.
I see no reason why the Strata cannot ‘on charge’ tenants needing an extra car space for medium to long term parking. e.g. $50+ per month – very cheap compared to a Road Parking fine or Street Vandalism to the vehicle.
Only issue is whether we need car bays available for ‘real visitors’ ie Agents visiting site, Maintenance crew etc..
Do we reserve 1 for operational requirements? (1)
SM answer: Regarding the car parking bays at the complex, A Community Management Statement (CMS) was registered in 2010 for “the complex”, with the attached by-laws and plans that show and indicate all the space that is to be shared and maintained. To make changes to the common property the CMS would have to be changed, (approx.. $3,000) with surveyors having to be engaged with the request of maybe fitting two more visitor bays? This would be a very long process and costly for the Body Corporate, however if you believe this would be something you would like to consider please instruction our office to start the process.
There is no Strata regulation that states 15 Units should have X amount of visitor bays, it is usually the developer who determines what they believe will sell – or what they can fit on the block. New Strata Titles are coming with two parking bays as standard – providing they have ample land. We have a complex with over 60 units and they have 15 visitor bays, they also have exclusive use parking and only some are two bays, end on end to save space not side by side. (2)
Not the answer I was seeking.
Can we (Committee or Owners grant permission for SM to lease a say 3 out of the 5 Visitor car Bay to tenants. Monies would go back into SM sinking funds. Currently SM are constantly emailing owners, tenants about the bylaws etc..(3)
Hi Dave
This response has been received from Frank Higginson in answer to your three questions above:
(1) You have answered your own question to a degree. If you paid extra for the extra car park it is yours. No one can dispossess you of that – including the body corporate. If an owner owns it and rents it as part of their property to tenants that that is what they paid for. The body corporate cannot take it off them, regardless of whether the property is occupied by a tenant or an actual owner occupier.
(2) You are correct in that there are no strata regulations that dictate parking. All parking has to do with the body corporate is knowing what spaces are allocated where and where the visitor parks are. It is not the developer that dictates parking though – it is the local authority. They will condition the development approval to delivery of a certain number of car parks. That is where you need to look with respect to the number of visitor parks you need to provide and you will also need to talk to a town planner if you want to create more visitor parks elsewhere. That then may become a traffic management issue (believe I or not).
(3) With the right level of general meeting (not committee) approval, and with the right planning approval, the answer is yes. But don’t do it without either of those.
Hi dave
We have received the following response back from Frank Higginson, Hynes Legal:
Two answers:
1. Visitor bays
Usually, these are the minimum required by the town plan for the development in the first place. I would check with the original development approval or a planner to tell you what is needed. If it is 5, then it has to be 5. If it is not, then there will be scope to doing something with the extra bay(s), which I discuss below.
2. Lease a bay
If something is common property it is almost certain that granting someone the right to use it exclusively ahead of other owners will require an approval at general meeting. The type of resolution (depending on which module you are in) will change depending on the term for which that exclusivity is granted. The highest threshold for permanent grant is a resolution without dissent. Consideration can be paid in terms of permanent acquisition or rental for a period too.
The most recent article on Visitor Parking has prompted a question. Staff (employed under a contract) by the Building Managers are being allowed to park in Visitors car parking spaces while they are working on site. The Body Corporate has attempted to prevent this however the Building Managers contends that the housekeeping staff are actually “visiting” lot owners in order to clean the units. Can the Body Corporate prevent the Building Managers staff/contractors from using the visitors car parking spaces?
Sharyn S
Hi Sharyn
We have received this reply from Todd Garsden, Hynes Legal:
This is a position where it is not necessarily settled but our views are that:
– Staff that are working in a commercial lot would be occupiers;
– Contractors engaged by an owner directly would be visitors; and
– Staff of the caretaker to perform services in a lot on behalf of the caretaker fall somewhere in between.
In this circumstance I think the argument I would prefer to be on the side of is that they are visitors of the caretaker (as opposed to owners) and more than likely entitled to use the car park. The issue then is how regularly they park there, for how long, and whether it affects other visitors from using the car parks.
I live in an apartment complex in Brisbane with 330 apartments and about 80 visitor car parking spaces. Our Body Corporate by-laws prohibit residents from parking in the visitor car park, We have a serious problem with residents who have only one resident car parking space using the visitor car park to park their second and third vehicles, so that bona fide visitors frequently cannot find an available visitor car parking space.
The advice on this website from Frank Higginson at Hynes Legal indicates that, under the Queensland BCCM Act, the Body Corporate does not have the right/power to:
– tow or clamp residents’ vehicles parked in the visitor car park; or
– set any time limits on how long bona fide visitors can leave their vehicles in the visitor car park.
He advises that the only remedy to a breach by a resident of the by-law on visitor parking is for the Body Corporate to obtain an adjudicator’s order from QCAT.
While Frank Higginson’s advice on what a Body Corporate CANNOT do to control misuse of a visitor parking area by residents is helpful, it would be even more helpful if he could provide some advice on what a Body Corporate CAN do to deal with this problem, which is clearly widespread in apartment complexes.
For example, some relevant questions I would like answered include:
– Does it require evidence of persistent offending by a resident and the issue of a ‘continuing contravention notice’ or a ‘future contravention notice’ under Sections 182 or 183 of the BCCM Act before seeking an adjudicators order? If so, what would be considered sufficient evidence and how can that be obtained?
– Can a Body Corporate require residents to register with the on-site manager the vehicle licence numbers of all people resident in their apartments?
– What is the definition of a bona fide visitor, as it applies to the right to park in a visitor car park? When does a visitor become a resident? If a resident gives a security access tag to their visitor (giving the visitor access rights equal to that of a resident), does that allow the visitor to be treated as a resident? Can a Body Corporate require residents to register the vehicle licence numbers of all the visitors to their apartments with the on-site manager?
The visitor parking problem in apartment complexes is clearly extremely common, so any advice on how a Body Corporate could effectively manage its visitor parking area for the benefit of all residents would be greatly appreciated.
Hi David
Thanks for your comments and questions. We have received the following reply back from Todd Garsden, Hynes Legal:
The only thing a body corporate can do to stop unlawful parking is by owners in the visitor parks is to enforce the by-laws which ends up in the Commissioner’s Office to seek an order to prevent it.
So to answer the questions:
– Yes – it would require evidence of the breaches, proof the contravention notices were sent, and further evidence that the contravention notices were not complied with;
– In theory, a body corporate can require cars to be registered with the committee (if the by-laws contemplate that) – but we think the administrative nightmare that brings is not always worthwhile; and
– A bona fide visitor is not always easy to define – if it is not their primary residence then they are probably a visitor. Some visitors can be regular and others can stay for long periods of time – it does not matter whether they have a swipe fob or not. Again, in theory the visitor can be required to register with the committee when parking – this is usually a good solution when parking for extended periods.
Thanks for the answers to my queries of 20 June 2018. I have a further query on this vexed question of visitor parking in apartment complexes.
Would there be any legal problem with a Body Corporate installing boom gate entry access to a visitor parking area controlled by a Licence Plate Recognition (LPR) camera, and automatically denying access to the visitor car park to known resident vehicles using their licence plate numbers? Any vehicle licence plate numbers not on the resident list would be automatically admitted to the visitor car park, on the assumption they are bona fide visitors. The exclusion list would be updated as residents and their vehicles change.
This approach would seem to avoid the onerous processes needed to get a Commissioner’s order to get recalcitrant residents out of the visitor car park, by stopping them getting in in the first place.
Hi David
We have received the following response back from Todd Garsden, Hynes Legal:
There’s nothing wrong with that, in theory, assuming the body corporate properly approves the spending and improvement.
The only thing to consider is the practical way this would work with administering this properly – I think there would be difficulties in having owners properly update their details with the body corporate – so there would also need to be consideration of a by-law for that to work – and then issues of enforcing the by-law.
Unfortunately I am experiencing the same problem. I live in Bundall . I record the visitors car park spaces daily and they are constantly used by renters in the complex. I have approached the manager and he refuses to acknowledge the complaints by owners. There has been allegations that he is discreetly obtaining cash payments for allowing tenants to park in the visitors parking spaces . The manager and his wife are very abusive to the elderly visitors when they try to find a park when visiting relatives. It’s just so upsetting that these managers have this behaviour and ignore pleas of requests to resolve the situation. My Tradesman has to park up the road which cost me additional due to the extra time being taken. Can anyone please suggest what can we do .
Hi Assunta
We have received the following reply back from Frank Higginson, Hynes Legal:
This is not a manager issue
This is a committee issue to enforce the by-laws.
Complaints about conduct of occupants should be directed at the committee and from there you can take matters into your own hands about enforcing the by-laws if they don’t.
You may also find this article helpful:
QLD: The golden rules of by-law enforcement
I notice your response relates to “someone living in the scheme full time as an occupant”. As by-laws relate to ALL residents, does this apply to residents of holiday let units? We have a problem where the lot may have only one designated car park however short term stays (holiday makers) may rent a two bedroom unit with one allocated car space but have two vehicles. One vehicle will use the designated space for that lot but use a “visitors” car park for the second vehicle. Full time occupants who have two vehicles but one only one allocated car space are not afforded this privilege. The Building Manager/Letting Agent argues that in the case of holiday lets, one vehicle belongs to the tenant and the second vehicle is a visitors vehicle which is entitled to use a visitors car parking space. Is the Building Manager correct? If not, how does the committee enforce this particularly as the Building Managers is required to monitor the correct use of visitor car parking spaces.
Hi Sharyn
Thanks for your question. We have received the following reply back from Frank Higginson, Hynes Legal:
People that are staying there as a holiday maker are not visitors for the purposes of the by-laws and the BCCM act. While they might not live there permanently, they are occupants of a lot under some form of lease or licence for the period of their stay. If there is only one car park for their lot, they should stay in that or park on the street.
People visiting them are going to be visitors though, and before anyone asks, I don’t think you can have a visitor for the entire 14 days period of their holiday……