QLD: Q&A Body Corporate Rules for Cars on Common Property

This Q&A is about body corporate rules for cars on common property in QLD.

Table of Contents:

• QUESTION: A new resident’s large 4WD ute does not fit within the lot car space and hangs over onto common property. What can we do?
• QUESTION: We have tradesperson parking spaces that restrict access to some exclusive use car parks. Would these spaces have been a requirement of Council?
• QUESTION: While driving within the strata scheme my car was damaged by rocks and a bollard placed in a garden on common property. Who is responsible for repairing the damage to my car?
• QUESTION: A resident has asked the Body Corporate for permission, on medical grounds, to park their car on the common property. Parking on common property is not allowed under our by-laws. If we can grant permission, how will this affect the body corporate insurance?
• QUESTION: To control parking on common property, Body Corporate committee has issued one “parking permit ticket” to each unit in our complex. Can the committee introduce a system like this without full approval from owners?
• QUESTION: My car was not in a designated car space when it was reversed into. Is the driver responsible for the damage caused?
• QUESTION: Hotel guests in our building are forever parking in my convenient car spaces. It’s got to the point that I’m reluctant to go out! Help.
• QUESTION: We don’t have enough car spaces for the number of cars at our small building. Can we agree to park on common property?
• QUESTION: Can we request special approval from the body corporate committee to park in the visitors car park?
• QUESTION: Can our Body Corporate contract a third party company to install a parking management system to track vehicle parking and introduce fines for vehicles?
• QUESTION: We live in a free standing house in a gated community. Apparently we are in breach if we park on our verge. Can this be correct?
• QUESTION: To solve our parking issues, we’ve come up with a process for allowing resident to park on common property. Is this enforceable and legal?
• QUESTION: We are addressing parking issues in our strata by implementing a criteria-based approval system. What is a reasonable criterion for rejecting applications?
• QUESTION: Can I put a fold down bollard in my allocated apartment block parking space?
• QUESTION: We have an owner who drives a truck into the common property. The truck runs over edging and damages plants on the way in and out of the complex.
• QUESTION: My car was parked in visitor parking because access to my property was blocked due to tree cutting. Someone backed into my car. Is the body corporate responsible?
• QUESTION: Two out of our three lot owners would like permission to park on common property. As we are a majority, do we need approval from the other lot owner?
• QUESTION: What are the rules about washing your car in your car park or on common property? Should there be a designated area for car washing?

Question: A new resident’s large 4WD ute does not fit within the lot car space and hangs over onto common property. What can we do?

I am the chairperson of our units. A new resident’s large 4WD ute does not fit within the lot car space and hangs over onto common property. Our by-laws do not address this. What can the body corporate do? The resident who uses the car space next to this one is unable to park without damaging the garden.

Answer: Perhaps some compromise position could work for all parties.

As vehicles get bigger, issues like this are more and more common. Unfortunately, the resolution isn’t straightforward.

From a technical perspective, the lot owner is only allowed the use of the car space up to the specified dimensions of that space. The exact size should be listed on the CMS or you can look at the plans for the scheme. Sometimes, they only state the total space in square meters, and sometimes you get the exact length and width. It’s worth checking these details to be sure the vehicle is encroaching on common property space rather than just looking at the line markings which may or may not reflect the plan.

If the vehicle extends beyond the dimensions of this space, it is encroaching on common property and it is reasonable for the body corporate to take action.

Most by-laws will have a clause that can be used to indicate a by-law breach. The standard schedule 4 by-laws state:

2 Vehicles

1. The occupier of a lot must not—
   
   1. park a vehicle, or allow a vehicle to stand, in a regulated parking area; or
   2. without the approval of the body corporate, park a vehicle, or allow a vehicle to stand, on any other part of the common property; or
   3. permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property, other than in a regulated parking area.
2. An approval under subsection (1) (b) must state the period for which it is given.
3. The body corporate may cancel the approval by giving 7 days written notice to the occupier.
4. In this section—

“regulated parking area” means an area of scheme land designated as being available for use, by invitees of occupiers of lots included in the scheme, for parking vehicles.

If you followed those it is possible that the owner could apply to have an oversized vehicle but there would be no reason for the body corporate to grant this approval.

If your parking by-laws don’t cover this then perhaps you could look to pass a new by-law on parking. You can also consider whether any of the other by-laws you have may apply. For example, by-law 3 of the standard by-laws states:

3 Obstruction

The occupier of a lot must not obstruct the lawful use of the common property by someone else.

You can also consider whether the owner is in breach of the Act or module for your scheme. The parking could be considered a nuisance or a hazard. Section 167 of the Act could apply – it states:

167 Nuisances

1. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
   
   1. causes a nuisance or hazard; or
   2. interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
   3. interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
2. Without limiting subsection (1) , the occupier contravenes this section if—
   
   1. the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property of the scheme; and
   2. an occupier of another lot or an invitee of the occupier of the other lot, or a person who is lawfully on the common property, is regularly exposed to the smoke or emission from the smoking product—
      
      1. in the other lot; or
      2. on the common property.

So, the law is likely to be in favour of ensuring vehicles are parked within the dimensions of the allocated space.

The difficulty comes with enforcing this. Here you can issue by-law breaches notice or perhaps take the owner to the Commissioners office if they don’t park the vehicle correctly.

You could also look at out of the box solutions – maybe fencing could be added to help define the allocated space. And, you could look at having the vehicle towed, although this is easier said than done.

If it was me, I  would start with a polite letter to the owner from the body corporate explaining the problem. Maybe some careful parking could help alleviate the issue. Perhaps there is some compromise position that could work for all parties.

However, if the owner refuses, it may be worth seeking legal advice to help define the issue for the owner and the body corporate.

Lastly, the owner might say there is nothing they can do because they can’t change their car. This is not correct – they can park somewhere else where their car does fit. Ultimately they should know the size of the space allocated to them when they bought the property or vehicle. If they didn’t understand, that is their problem not the body corporates.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #727.

Question: We have trades parking spaces that restrict access to some exclusive use car parks. Would these spaces have been a requirement of Council?

Our Standard Module CMS discloses that the approaches to exclusive use carparks in our basement parking are Common Property. Not noted on the Plan are a couple of spaces that have been created for tradies on the Common Property.

When one or more of the tradies’ spots are occupied, they hinder convenient access to and from some of the exclusive use car spots.

What type of resolution would have been required at a general meeting to create the tradie spaces, assuming it wouldn’t be within the power of a committee to do so? Would these spaces have been a requirement of Council and is that why those spaces have not been noted on the Plan?

Answer: Review the development approval applicable to the scheme.

The council’s development approval may have imposed a requirement of the site to include those specific trades parks. This can be confirmed by reviewing the development approval applicable to the scheme.

Absent any development approval requirements, it is not surprising that the tradesperson car parks are not mentioned on a plan in the CMS as the installation of a tradesperson car park:

1. would not be noted as an exclusive use allocation – as it is not common property being granted to a lot owner;
2. can be simply created by approving the works by way of an improvement to the common property based on the relevant improvement limit (where the cost determines the level of approval required); and
3. otherwise, can only be enforced if there is an appropriate by-law – requiring a special resolution.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #601.

Question: While driving within the strata scheme my car was damaged by rocks and a bollard placed in a garden on common property. Who is responsible for repairing the damage to my car?

While driving within the strata scheme, I was forced to move over to let a large van pass. My car was damaged by rocks and a bollard placed in a garden on common property.

I believe the bollard and rocks have been installed by a lot owner without written permission from the body corporate. Who is responsible for repairing the damage to my car?

Answer: Your first step will be a quote for the repair to the damage and then to approach the committee.

There is a fair bit in your query which is unclear. For example, how exactly were you ‘forced’ to move over? How did the damage occur and why do you believe the rocks and bollard were not authorised?

I ask these questions because at some point, you will need to have answers for them if you want to pursue this. The basic situation here is that a body corporate can be responsible for damage experienced by an owner if it can be shown the body corporate did not meet its legislated responsibilities. In other words, you would need to show why the body corporate was responsible for the damage to your car. You can seek an order from an adjudicator in the Commissioner’s Office to this effect.

Your first step will be a quote for the repair to the damage and then to approach the committee. I’d be strongly suggesting that prior to doing so, you get information which helps you answers the queries above. Speculation, hearsay or assumptions will not be good enough.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #597.

Question: A resident has asked the Body Corporate for permission, on medical grounds, to park their car on the common property. Parking on common property is not allowed under our by-laws. If we can grant permission, how will this affect the body corporate insurance?

I am the Chair of the Body Corporate Committee for a Community Title Scheme. A resident has asked the Body Corporate for permission to park their car on the common property, the road in front of their residence, to help with access. The request has been made on medical grounds due to a back injury, but we have not been provided medical information including likely recovery time. Parking on common property is not allowed under our by-laws.

We understand that exclusive use of the location can only be granted without dissent at a general meeting. The committee is inclined towards providing permission for the parking for a short period. There are concerns of insurance liability if the vehicle is damaged whilst parked there (say by the rubbish truck), or if it damages common property (light posts etc) while being parked etc.

Is this decision will create an insurance problem for the BC, can we reasonably ask the owner to waive liability of the BC for loss or damage to the vehicle while it is parked on common property?

Answer: This is a complex situation and my view is that your first step is going back to the owner in question to seek further clarification about the medical condition.

If your by-laws do not allow for parking on common property (and I’ll take your word for that), then the committee simply cannot allow it happen, medical reasons or not. The by-laws would need to be changed.

If the by-laws did allow for it, then I think it would be reasonable for the committee to request some evidence of the medical condition. While I realise that is a potentially delicate issue, the committee does need to have objective information in front of it in order to make decisions. Framing that request appropriately would be essential, to say the least.

Regarding your concerns about liability, you would want to discuss that with your insurance broker and/or seek legal advice prior to doing anything further. Particularly if you are considering an exclusive use situation. As you are probably gathering, that comes with significant consequences for the body corporate, the owner in question and other owners too.

This is a complex situation and my view is that your first step is going back to the owner in question to seek further clarification about the medical condition, what it prevents them doing, what the likely recovery period is and any other information that adds a bit of context. That will likely guide what you do after that.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #558.

Question: To control parking on common property, Body Corporate committee has issued one “parking permit ticket” to each unit in our complex. Can the committee introduce a system like this without full approval from owners?

The Body Corporate committee has issued one “parking permit ticket” to each unit in our complex. These tickets are to be prominently displayed on vehicles parked in designated parking bays ensuring that no more than one vehicle per unit is parked in the regulated areas.

There are 12 parking bays for 30 units and a first in first use system has been adopted. Any excess vehicles are to be parked outside of the complex. This can often lead to vehicles being parked externally while there are vacant parking bays inside the complex.

Is the committee allowed to introduce a system of this type without full approval from owners?

Answer: The Committee cannot institute rules that override the by-laws or the Act.

Parking causes an issue at many schemes and it seems like your Committee has tried to come up with a way of creatively managing it. Unfortunately, that method is likely to be invalid.

The Committee cannot institute rules that override the by-laws or the Act. As an owner, you should refer to those by-laws and your title documents to see what is an isn’t permissible. In most schemes that means that individual units are ascribed specific spaces and then there are a few visitors spaces for visitors only. From the information provided, you may have a different set up, but the relevant documents would be required to advise on what that is. You should contact your body corporate manager a for confirmation of the technical position.

From the sounds of it, it seems like your Committee might be well-meaning but a bit misguided. I have to admit that a little part of me doffs my hat to them for trying a novel solution to an endemic problem. The reality is that for many schemes there are more cars than there are spaces and this causes a multitude of problems. And, while there are rules and by-laws to help regulate parking, no one can really pretend that they are effective. Just look up the number of questions this site receives about parking issues to see the evidence of that.

At your site, you have 30 units and 12 spots. In a perfect world, everyone should be aware of that before they purchase or move in and plan accordingly – perhaps by not having a car and taking public transport. However, we are a long way from living in a perfect world, and it seems almost inevitable that parking at your site will be problematic. In that context trying to think through an out-of-the-box solution isn’t a bad thing. You may never get a perfect solution, but if there is an idea that can bring greater utility to more people, who can object to that?

Where your Committee has gone wrong is in not presenting their ideas to the body corporate to vote on and not seeking to have the by-laws changed to adopt the new proposal. It may also be necessary to review the ideas with a strata lawyer to establish their legal viability if proposed as a by-law. If it’s not official, owners and occupants can simply ignore the Committee’s idea without concern of reprisal. This is probably a worse situation than the default.

As a next step you might contact the Committee with these points but, if you agree, also say that you are amenable to looking at and voting on alternative proposals for how to manage parking at the site. Hopefully, there is a midpoint solution that will benefit a majority of owners.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #548.

Question: My car was not in a designated car space when it was reversed into. Is the driver responsible for the damage caused?

I was not parked in a designated car space when my car was reversed into by another resident. The resident is now refusing to pay for the damage. There is CCTV footage clearly showing ample space for the driver to move. Is the driver responsible for the damage caused to my vehicle?

Answer: The resident/vehicle driver should have taken reasonable care to look out for obstacles when driving around your vehicle, even if it was not in a designated car space

This is a great question, and as far as we can see it has not been tested yet in a court of law. Accordingly, we do not have a precedent as to what the outcome should be.

It has been accepted that a driver has a duty of care to avoid acts or omissions that it can reasonably foresee would be likely to injure its neighbour (Donoghue v Stevenson [1932]). This means that the resident/vehicle driver should have taken reasonable care to look out for obstacles and when driving around your vehicle, even if it was not in a designated car space. The fact that your vehicle was in a space where it was not allowed does not give the driver the right to cause damage to the vehicle.

Although the driver owes a duty of care to not damage your vehicle, this does not mean that you are not at fault in any way. In the ACT case of Steed v McDougall [2019], a driver reversed into a post delivery driver who was on a motorbike. The court said that the driver had a duty of care to be cautious of the motorbike that typically follows that path every day. However, the post delivery driver was deemed to have contributed to the accident as he should have been keeping a lookout for himself. Another example of this is the case of Mikaera v Newman Transport Pty Ltd and another (2013). In this case, a truck driver was parked illegally on the side of the road on the exit ramp of the motorway. The respondent in this application said he came off of the highway going approximately 90km and was unsure what road to go down when it came to a fork in the road and quickly decided to go left. The respondent said he did not see the truck until the very last second because of the speed he was going and then braced for impact. The collision resulted in the injury of the truck driver and the judge found the respondent vicariously liable for his conduct. However, the judge reduced her award of damages by 66% to account for the truck driver’s contributory negligence of parking illegally.

Appreciating that the above cases related to injury sustained from accidents (rather than property damage caused by same) if we apply these cases to the question at hand, we can say that the resident/vehicle driver had a duty of care to look out for your vehicle however, it is arguable that you may have contributed to the collision because of the way in which your vehicle was parked. We note, however, that we are not fully appraised of the circumstances of the accident and certainly suggest that you obtain legal advice regarding your legal position and options.

With regard to breaches of a Body Corporate by-law concerning parking in an unmarked area, we are of the opinion that it is largely not relevant to the matter at hand. Where we see the Body Corporate’s involvement coming into play is where occupiers/invitees have parked contrary to the by-laws. By-laws (apart from exclusive use by-laws) cannot impose a monetary liability on owners or occupiers either. Accordingly, it is our opinion that this matter would be more appropriately dealt with through the insurance providers of both parties, or by an application to a court of appropriate jurisdiction.

Jessica Cannon
Cannon + Co Law
E: [email protected]
P: 07 5554 8560

This post appears in Strata News #543.

Question: Hotel guests in our building are forever parking in my convenient car spaces. It’s got to the point that I’m reluctant to go out! Help.

I live in an apartment block that has a mixture of residents and hotel guests. My two car spaces are directly in front of the elevators and hotel guests find it convenient to park there instead of their allocated parking spot. I have approached Body Corporate and hotel management to rectify the problem, but I feel their efforts are shortcuts or bandaid solutions only. 

It is causing me inconvenience, stress, and I am anxious to take the car out because I do not know what to expect on my return. Am I delusional in thinking I can sue for damages to my health and well-being? I am becoming desperate.

Answer: Ask whether your car spaces can be moved.

As a body corporate manager, we can’t comment on the merits of any case where you sued the body corporate for stress but it would be an interesting case to see. If you won, it might change the way the whole industry was run and many people encounter levels of stress when dealing with how body corporates operate.

From a manager’s perspective, there are some more practical options that can be considered.

Firstly, you might ask whether your spaces can be moved. If we assume other owners will be unlikely to want to change with you and that there is no space to create new spaces this likely means checking if your spaces could be swapped with some of the visitor’s spaces. If that was practical, you then need to enter the legal process of having the property transferred. This can be expensive, as to transfer the visitor’s spaces to you while taking possession of your spaces, the body corporate needs to hold meetings to approve the proposal (hopefully owners would agree), have new documents recording the ownership drawn up, have the documents registered and so on. Legal representation will have to be engaged throughout the process. There is a mechanism to do it, but almost invariably the question comes down to who pays? The body corporate won’t want to as it won’t receive any benefit from the works so usually, the costs fall on the owner. If you are prepared to cover this then this may be the best method for you.

Otherwise, it is a matter of how the spaces can be better controlled so that only you can access them. Clear marking and signage is a start point, but they don’t always work. Fold-down bollards may be a bit of a pain to use but they will help protect your spot – is there a reason they can’t be installed? Sometimes the solution can be as simple as putting cones in when you are not using the space. There is no definite answer but with some trial and error, you may find a solution.

If you are not getting much help from the body corporate managers or hotel owners it can be helpful to come to them with your preferred solution first rather than just asking ‘what can I do?’, they may reject your solution but in that circumstance, they should give you a reason why and hopefully an alternative for you to consider. You have to bear in mind that it may not be possible for you to get to your ideal situation so in that case, you have to try and reach the most practical solution available.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: We don’t have enough car spaces for the number of cars at our small building. Can we agree to park on common property?

Our small body corporate building has 6 units, but only enough space for 3-4 cars.

One solution is to allow parking on common property, however, all lot owners do not agree that this is a good idea.

Is there a solution if you do not have enough car spaces for all unit holders?

Can the Body Corp lease out the car spaces to residents who want them?

How do we establish the rental value and period of lease?

Answer: Make an application to council to add additional spaces.

I think it’s very difficult. When you move into a property, you should know how many car parking spaces there are. When you buy a property, you know if there are one or two parking spaces, or you know if there is zero. You’re going to get what you get, to some extent. The allocation of the 3-4 parking spaces in the building has not been disclosed. If the parking is allocated to visitors, it is visitor parking only and it is not for the occupants of the property, and if it’s allocated to a lot, it’s part of their property so you can’t really take that away from those individuals.

Should you be allowed to have parking on common property? It doesn’t sound like a very good idea to me. What if there’s an accident as a result of that? These aren’t marked spaces. You could make an application to council to add additional spaces, there are some buildings that have done that. But then that space becomes a common property space, and perhaps you can sell it or lease it on that basis.

I think it’s very difficult for people who are looking at trying to add extra parking spaces.

Informal decisions are only informal decisions. They don’t carry any meaning. If one person disagrees, then the whole thing collapses. Make an application to council. If council lets you have an additional space on your site then, by all means, create one but I don’t think it’s really something the body corporate can just do.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #526.

Question: Can we request special approval from the body corporate committee to park in the visitors car park?

We live in a 75 townhouse unit complex with multi car families and work vehicles. We have received a breach notice in relation to parking our car in visitor parking and on common property roadways. There are no car parks in our complex for owners other than designated garages.

Our garage is quite small and our car will not fit. Our driveway outside our garage is very short and only fits a very small / compact car (e.g. mini), not our car. The complex is in a small cul-de-sac which caters for around 4 cars to park on the road but these parks are usually already taken by the time we arrive home from work.

What are our options? Can we request special approval from the Body Corporate Committee to use a visitor park? If there is nowhere to ‘legally’ park our car, then we either have to sell our car and purchase a small / mini car or sell the townhouse and move.

Answer: You can certainly request permission to park in visitor parking, but I couldn’t really imagine many circumstances in which the answer would be yes

I have hardly ever managed a scheme that hasn’t had parking issues to some degree or another. There must be more cars than there are parking spots.

Parking is a constant thorn in a lot of people’s sides, but it’s also the case that the body corporate can’t just increased the number of car parking spaces, or can’t make car parking spaces bigger or garages bigger. There’s very limited capacity for the body corporate to take action.

In this case, the owner is saying that their unit doesn’t really have a margin of space for the size of vehicle that they want. As a result, they you know, they’re looking at, buying a smaller vehicle or move house? I mean, the answer to that is ‘Yes’. Unfortunately, we all we all have to make compromise decisions in our life about how we live, and it might be the case that you’d have to buy a smaller vehicle.

They ask, ‘Can we request special approval from the body corporate committee to use a visitors car park?’, You can certainly request it. But I couldn’t really imagine many circumstances in which the answer would be yes, because you’ve got 75 townhouses here. Presumably everyone would like to have an extra parking space or a bigger car parking space and the body corporate is not able to provide that kind of service to everyone. It’s very difficult to see how that type of request could be accommodated.

Behind that kind of request, I guess what the person is asking is, ‘Can I have more utility than some of the other users of the site?’ that’s really what they’re asking. ‘Can I have something more than what I actually paid for?’ In that type of situation, the answer is almost always no. You have to accept what it is that you bought into and what its limitations are and you have to accept that other people just can’t change those very easily for you.

That sounds like a bit of a tough answer, I suppose. But it’s about being realistic in terms of what’s possible.

it’s majority rule. Technically, it might be possible for the committee or the owners corporation to give that one person the extra space, but I can’t imagine there would be a lot of happiness coming out of it. If I lived in that building I might say, ‘Oh, well, I’d like an extra space too, please’ and then my neighbour could say the same thing. I don’t think the committee or the wider body corporate can really entertain an application like that unless there are very exceptional circumstances.

I’ve been involved in buildings where I have seen short term accommodation given to people who used a visitor’s parking space (just from personal example), you know we had someone who had had an operation and had difficulty walking, and then there was various reasons why they were given access to one of the visitors spots. That was an exceptional circumstance for limited amount of time, and there’s compassionate grounds for providing that kind of exception.

Unless you’ve got some kind of real, concrete reason, I can’t see why they’d give one lot owner greater utilities then the others.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #509.

Question: Can our Body Corporate contract a third party company to install a parking management system to track vehicle parking and introduce fines for vehicles?

In Qld, our Body corporate committee are considering signing a contract to allow a parking management company to install a parking system in our building that will track vehicle parking and introduce fines for vehicles that overstay the 4 hours stipulated by the committee.

People who do not pay up will be sent to the debt collectors and incur more fees and charges. They also intend to trap residents who are owners who also use the guest parking bays against Body Corporate rules

Is it legal to allow a third party company to take over the building public car-parks and install system to charge residents guests and residents ? The money goes to the third party company.

Answer: A body corporate is able to enter into contracts subject to legislative requirements about those contracts

A body corporate is able to enter into contracts subject to legislative requirements about those contracts, for example, that the correct motion type passes for the amount and duration of the contract. If a matter of this type went to a general meeting for approval, then you would be able to vote on it as an owner (assuming you are financial).

Whether this specific scenario is legal or not will depend upon the specific facts of the matter and that may require legal advice. It is correct that a by-law cannot impose a monetary penalty but what you’re talking about here seems to go beyond a by-law.

I’m interested in your statements where you are seemingly acknowledging that owners are parking where they should not be and that, in your words, the body corporate intends to ‘trap’ them. I’m not sure how someone can be ‘trapped’ when they are, in your own words, knowingly contravening a by-law about visitor parking. I would have thought that a better option for you might be to focus on why owners are parking in visitor parks when it seems they are clearly not visitors. Has enough been done to communicate parking regulations? Has there been proper communication to tenants and managing agents, for example? Is the issue non-residents (owners or tenants) using the space? Is signage clear enough? Does everyone know what the by-laws say?

If the issue is that there are not enough parks then that might have something to do with the conditions imposed by the local council.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #505.

Question: We live in a free standing house in a gated community. Apparently we are in breach if we park on our verge. Can this be correct?

We live in a free standing house in a gated community and there is a by law as follows regarding parking:

36. CAR PARKING

Despite any other provision of these by-laws, no Motor Vehicle can be parked on the Common Property unless this does not create an obstruction to the lawful use of the Common Property by any person.

Apparently this includes the verge directly in front of our house. If we were to park on the grass in front of our house would we be in breach of the bylaw if we are not causing an obstruction to any other person. No one uses our front garden except us.

Answer: Arguably you could in breach, but the problem here is that the by-law is not clear either way.

That’s a good question. Arguably you could be, particularly if the garden is exclusive use or otherwise common property, but the problem here is that the by-law is not clear either way. When a by-law is ambiguous, that is fertile ground for dispute, as it leaves both the body corporate committee and owners and occupiers in the dark about what is and isn’t expected.

Have you received a contravention notice? If so, then you might like to open up a dialogue with the committee about the ambiguity. Or, you can put a motion to a general meeting to have the by-law changed or indeed, have the entire set of by-laws reviewed.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #503.

Question: To solve our parking issues, we’ve come up with a process for allowing resident to park on common property. Is this enforceable and legal?

Our CMS states that parking is only allowed on common property if a resident has sole use or written permission from the committee. Residents in our complex who have parking in front of their garage have sole use of that common property. Residents who do not have enough space can fill in a pre approved application form to park on common property and they receive a yellow sticker so the manager can quickly identify an approved vehicle.

The committee has been informed that the manager cannot put a bylaw violation notice on any vehicle until the written permission process and sticker system to help the manager is added to the parking bylaws in the CMS.

Is this correct or is the written permission process just an internal system.

Answer: Apart from other issues with this process, the manager is unable to enforce the by-laws

The starting point is an owner’s right to use the common property as an exclusive parking bay. The CMS needs to provide for a specific exclusive use by-law. Otherwise the area is common property that all owners have equal rights to use. The adjudicator in Malibu [2021] QBCCMCmr 276 confirmed this position by stating:

The significance of the concept of indefinite use, or disposition, of common property has been highlighted by the Queensland Court of Appeal in Katsikalis v Body Corporate for ‘The Centre” [2009] QCA 77. The Court of Appeal found that where an improvement has the effect of granting use of part of common property exclusively to a lot owner for an unlimited period, section 187 of the Standard Module cannot be treated separately in its effect from section 184 of the Standard Module, and an improvement that would be enjoyed exclusively and indefinitely by an owner amounts to a disposition of common property for an indefinite period.

Additionally, the High Court of Australia, in Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167, made clear that an allocation of exclusive use of body corporate airspace is a serious and significant issue.

Secondly, the manager is unable to enforce the by-laws. This is a role that is specifically reserved for the committee as it requires a decision making process to be undertaken and resolution passed. The manager’s role is limited to assisting the with by-law contraventions by reporting to the committee and seeking instructions. The adjudicator confirmed this position in Tingeera [2011] QBCCMCmr 442 by relevantly providing:

[28] A body corporate cannot delegate its powers, and cannot contract out of the provisions of the Act. Therefore, regardless of the terms of any contract with a caretaker or BCM, the responsibility for enforcing compliance with the by-laws remains with the body corporate, usually through the committee. While a caretaker or a BCM may have a contractual obligation to monitor compliance with the by-laws, that responsibility can only extend to notifying the committee of alleged breaches and implementing committee decisions. A caretaker or a BCM has no independent capacity to enforce compliance with the by-laws.

The legislation provides for a specific by-law enforcement procedure – the warning sticker system would simply be an informal internal system which operates as a precursor to the formal process and does not need to be specifically provided for in the by-laws.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #485.

Question: We are addressing parking issues in our strata by implementing a criteria-based approval system. What is a reasonable criterion for rejecting applications?

I represent the BC Committee of a 23-unit residential complex. We have an issue with parking on common property, especially outside garage doors. We are addressing this by implementing a criteria-based approval system. We believe we have covered most of the needed criteria with:

• Does not block entry and exit to the complex
• Does not block entry and exit to other lot garages
• Does not block other Common Property areas such as Visitor Parking bays
• Does not prevent emergency service vehicles accessing all necessary areas
• Does not impede traffic flow.

Each unit has a double garage, but many residents are using the garage for other purposes like storage, gym, yoga classes, etc. and park outside the garage. We feel that garages should be used for their intended purpose and want to discourage the practice by rejecting applications to park on common property if the garage has been repurposed. Excluding special needs cases, is this a reasonable criterion for rejecting applications?

Answer: Your proposal sounds reasonable in principle, assuming that the areas outside the garage doors are common property.

Issues associated with parking on common property is one of the most common issues experienced in bodies corporate.

Your proposal sounds reasonable in principle, assuming that the areas outside the garage doors are common property.

Does the Body Corporate have a by-law preventing parking on common property unless the approval of the Body Corporate has been obtained?

If not, I recommend that the by-laws are updated. The proposed change requires a special resolution. Alternatively, if there is a relevant by-law, the approval can include reasonable conditions, such as:

1. the five conditions that you have listed; and
2. that a vehicle can only be parked on the common property if the garage of the relevant lot already has vehicles parked in it.

The conversion of a garage will be regulated by the by-laws (if there is a by-law that requires approval) and by any required Council approval. If the required approval has been obtained, it is likely that a requirement that the garage be used for parking vehicles will be unreasonable.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #432.

Question: Can I put a fold down bollard in my allocated apartment block parking space?

Answer: Bollards can be an effective way of controlling parking issues. Most likely you will need approval from the Owners Corporation to install a bollard.

Bollards can be an effective way of controlling parking issues.

Most likely you will need approval from the Owners Corporation to install a bollard. Contact your strata manager about your intention and they should be able to confirm what application is required.

It is advisable to select the model of bollard you have in advance and send this through to the manager so that they can clearly see what you have in mind.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: We have an owner who drives a truck into the common property. The truck runs over edging and damages plants on the way in and out of the complex.

We have an owner who drives a truck classed as a heavy vehicle onto the common property area every weekday for up to a few hours. 

Residents are fed up with the noise of the vehicle and the fact that the truck runs over edging and damages plants on the way in and out of the complex. The truck is reversed (with loud beeping) into a spare area just outside the residents unit. We are also concerned this heavy vehicle is damaging our concrete roadway as we have several patched areas now crumbling. 

Other than a breach (as the truck is only there for a portion of the day), is there something about heavy vehicles not being allowed unless delivering? 

Answer: Given that the truck has damaged the roadways, it is likely to have breached the schemes by-law.

Given that the truck has damaged the roadways, it is likely to have breached the schemes by-laws (e.g. damage to common property). The body corporate can (depending on the wording of its by-laws) issue a contravention notice in relation to the damage that has already occurred (assuming that the body corporate has not rectified the damage).

Regarding the loud beeping and other noise of the vehicle, this is likely to breach nuisance related by-laws of the scheme, as well as s.167 of the BCCM Act as it appears the noise unreasonably interferes with the use of lots and common property, and is recurrent. The body corporate can (depending on the wording of its by-laws) issue a contravention notice in relation to the nuisance and also notify the owner that the Body Corporate believes they are also breaching s.167.

If the damage is not rectified and/or the nuisance continues, the body corporate can take the matter to the Commissioner’s Office.

By-laws can only impose an absolute prohibition on vehicles over a specified weight limit using common property roadways if there is a reasonable basis for the limit, e.g. an engineer has advised that vehicles over a certain weight will damage the common property.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #383.

Question: My car was parked in visitor parking because access to my property was blocked due to tree cutting. Someone backed into my car. Is the body corporate responsible?

My car was parked in visitor parking because access to my property was blocked due to tree cutting.

On returning to my vehicle I notice someone had backed into my car, leaving a dent in my passenger door and scratches all down the left side.

Who is responsible as it was parked on common property (visitors car park) because access to my property was blocked by the tree cutting?

Answer: A body corporate will generally only be liable for damage to personal property where that damage has been caused because of a contravention by the body corporate of the legislation.

A body corporate will generally only be liable for damage to personal property where that damage has been caused because of a contravention by the body corporate of the legislation (for example, where damage has been caused by a body corporate’s failure to maintain its common property). Given that the damage was likely caused by bad driving rather than a breach by the body corporate, the property damage is not a body corporate issue.

However, you can still:

1. Report the incident to the committee or body corporate manager for discussion at the next committee meeting; or
2. request information from the committee in an attempt to identify the person responsible for causing the damage (for example, CCTV footage if it exists).

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #378.

Question: Two out of our three lot owners would like permission to park on common property. As we are a majority, do we need approval from the other lot owner?

I am a Lot owner in a Small Scheme Module Triplex in Queensland with a By-Law that prohibits owners and occupiers from parking or standing a vehicle on the Common Property at any time without the approval of the Body Corporate.

The Complex is managed by a Strata Title Company and there are two committee members myself and the owner of Lot 2.

I would like to seek Committee approval for one parking space in front of the garage of each Lot for owner/occupier’s use.

The owner of Lot 3 has expressed to me that they would like to park in front of their Lot but they are not on the Committee.

The owner of lot 2 has been very difficult about this issue in the past and strictly oversees the By-Laws of the Complex to their benefit.

Can this lot owner unreasonable refuse, given that myself and the Owner of Lot 3 would really like to have the option to park in front of our Lots?

What other avenues would be available to me to get this passed?

Answer: Permission for each lot owner to park on the common property (in unallocated car parks) being included on a general meeting agenda requires an ordinary resolution, which would be achieved if you and the owner of lot 3 both voted in favour of the motion.

The Committee must act reasonably in its decision making, including in relation to requests by owners.

However, a decision for all three lots owners to have designated parks on common property would be a restricted issue for the Committee.

You may wish to consider submitting a motion to be considered at the next general meeting which proposes that all three lots be entitled to park a vehicle out the front of their lot within specific areas to the exclusion of all others.

A motion for exclusive use requires a resolution without dissent (no ‘no’ votes) and the consent of all affected owners. If the owner of lot 2 was the only lot who voted against the motion, you could challenge their opposition to the motion by an application to the Commissioner’s Office.

Alternatively, permission for each lot owner to park on the common property (in unallocated car parks) being included on a general meeting agenda only requires an ordinary resolution, which would be achieved if you and the owner of lot 3 both voted in favour of the motion.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #371.

Question: What are the rules about washing your car in your car park or on common property? Should there be a designated area for car washing?

Answer: Some bodies corporate have by-laws regarding the washing of cars

Some bodies corporate have by-laws regarding the washing of cars in car parks or on common property, which can be found in the community management statement.

It is common for the by-laws to prohibit an owner or occupier from parking or standing a vehicle on common property without prior approval. If this is the case, and to be cautious, approval should be obtained from the Committee to park your car on common property for car washing purposes.

As regards washing your car in your car park:

1. if the car park has been allocated to your lot as exclusive use, then the relevant exclusive use by-law (in the community management statement) will state whether there are any restrictions on how the car park can be used. In our opinion, a car should not be washed in a basement car park as it is likely to cause a hazard; and
2. if the car park forms part of your lot (i.e. is on title), there may still be by-laws which apply (such as not causing a hazard). However, generally a by-law prohibiting the use of a lot for a normal use (such as for car washing) will be invalid.

There is no requirement to have a designated car washing bay. If a particular scheme is required to have a designated car washing bay, the requirement will be contained in the local authority development approval for the scheme.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #362.

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Read More:

• QLD: Q&A Can a Lot Owner Convert Their Garage into a Bedroom?
• QLD: Q&A Purchasing Exclusive Use Common Areas

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