This question about issuing strata parking fines has been answered by Tony Johnson, Horner Management.
Question: There are constant complaints of non-residents, owners or tenants parking in other peoples car parks – trespassing. We have strata bylaws where strata parking fines can be issued. What are the legal requirements for issuing strata parking fines?
Regarding a block of apartments in South Australia, each unit has a car park space as part of their property.
There are constant complaints of non residents, owners or tenants parking in other peoples car parks – trespassing. We have strata bylaws where strata parking fines can be issued.
- Is there a legal requirement of a written warning?
- Is there a legal requirement in regard to who issues strata parking fines – the strata manager, presiding officer etc.
- Does the owner of the property being trespassed against need to instigate the complaint or can a committee member take it upon them self to issue a fine?
Answer: For Owners, it should be noted that the fine stays with the Unit, so a Landlord should make all necessary steps to ensure their Tenants comply.
Parking is definitely a large issue that affects Strata Corporations in South Australia, and if Tenants / Residents are parking in others spaces this can be not only upsetting, but also create a domino effect of breaches (similar to someone sitting in your seats at a Cinema, so you sit somewhere else, and then those ticket holders can’t access their seats).
For Strata Corporations, the Fining system remains relatively new, having only been introduced to SA legislation in 2013. I take, from the wording of your question, this does relate to a Strata group of units rather than a Community Title. I believe your group has already created a by-law at a properly convened meeting, allowing for the provision of the fining system.
It seems that the groups biggest concern is in fact non-Residents parking in assigned spaces. Not knowing who these non-residents are would be the first hurdle, as the fining system does not provide for fining non-Members of the group.
It is the responsibility of all Residents to ensure that their Visitors know that there is no Visitor parking. Now would be an opportune time to remind all Tenants / Residents and Landlords that the carparks are assigned (perhaps show them a copy of the parking plan) and that the group does have a by-law allowing for reasonable fines to be imposed against those breaching the rules.
For Owners, it should be noted that the fine stays with the Unit, so a Landlord should make all necessary steps to ensure their Tenants comply. Although they can pass these fines on to the Tenant, it is naturally an unwanted burden to deal with, and one which they could get stuck with.
To specifically answer your queries:
- There is no legal requirement to issue a written warning before a fine, however all fines can be disputed in the Magistrates court and the fines must be deemed to be “reasonable” and as such I would find that the Courts would be more receptive to a warning having first been issued.
- The Act actually states that a Strata Manager cannot issue a fine. This is made very clear. The Strata Manager may distribute the fine, but only at the direction of those with the power to issue said fine. A Fine must be issued by the Corporation at a duly convened meeting or by the Management Committee (should the group have one in place).
- Refer point 2.
Below is an Extract Taken from the South Australian Legal Services Guide (available at the Legal Services Commission).
Penalties for breaching the articles
The articles of a strata corporation may impose a penalty of up to $500 [s 19(5)(b)] for contravention of, or failure to comply with, any articles [s 19(3a)].
Note that the articles set out in Schedule 3 of the Act (see above) do not include provision for imposing a penalty for a breach of the articles. If a corporation wants this power, it must amend its articles accordingly.
If the articles state that the corporation ‘may impose a penalty of up to $500’ for a breach of the articles, this does not mean that any penalty must be $500. A corporation should ensure that the amount of any penalty imposed is reasonable in relation to the nature and extent of the breach. The amount of a penalty could be disputed in the Magistrates Court if it is oppressive, unreasonable or unjust [s 41A].
Note that it is the strata corporation that may impose a penalty for an alleged breach. If a corporation has a management committee, the management committee may act for the corporation. Thus, unless some other valid delegation has been made, a properly called meeting of either the corporation or the management committee will be needed to impose a penalty for an alleged breach of the articles. A strata manager cannot impose a penalty for an alleged breach of the articles.
This post appears in Strata News #182.
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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.