Let’s see, can you tow a car from visitor parking in Queensland? This article and Q&A about strata car parking in Queensland has been supplied by Frank Higginson, Hynes Legal.
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Question: Can my body corporate put wheel clamps on a vehicle parked in visitor parking?
Can my body corporate put wheel clamps on a vehicle parked in visitor parking? I live in a townhouse complex with internal roadways.
Answer: Absolutely not.
Absolutely not.
There is no self help remedy for what I suspect is a purported by-law breach. The only way to enforce by-laws is with an order from the Commissioner’s office. This article we wrote on visitor parking.
This post appears in Strata News #390
Question: Do the recent tow truck legislation changes alter whether the body corporate can tow a car from visitor and other strata car parking areas?
Do the 16 April 2018 changes to tow truck legislation alter the process to be adopted by a body corporate wanting to tow owners vehicles which are parked in designated visitors car spaces?
Answer: The recent changes had no impact on the restrictions and requirements.
The recent changes to the towing legislation had no impact on the restrictions and requirements (hoops to jump through) of bodies corporate towing cars.
This post appears in Strata News #233.
Question: How do you remove an abandoned car on your property? Can we tow the car?
A previous tenant has moved out and left his unregistered car behind in the underground car park and despite repeated requests has not returned to remove it.
The letting agent has not co-operated on the matter claiming that the tenant’s account with them is now been closed.
How does the Body Corporate legally remove the offending vehicle?
How can the removal costs be referred back to the previous tenant as this should not be a Body Corporate expense?
Answer: If the body corporate is 100% certain that the car is in no way connected with anyone in the scheme, the pragmatic approach is to tow
The issue is this:
The body corporate cannot tow the car of an occupier without going through the formal by-law breach process.
If the car does not belong to an occupier it becomes like me parking on your driveway without your consent. You can arrange to tow me.
If the body corporate is 100% certain that the car is in no way connected with anyone in the scheme, the pragmatic approach is to tow it and see what happens. The worst that can happen is the owner comes back and says ‘You should have breached me, and you didn’t, therefore you owe me what I spent to get my car back.’
If the owner was not associated with the scheme the body corporate’s position would very defensible.
If the owner was an occupant the body corporate would not have a leg to stand on.
That is the pragmatic position! And if only we could get some legislative reform to make this all a lot easier…
This post appears in Strata News #108.
Have a question or something to add to the article? Leave a comment below.
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: Hynes Legal
Read next:
- QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors!
- BCCM: Parking in community titles schemes
- BCCM: Parking in community titles schemes
- Qld man threatened to shoot tow truckers
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Re Frank’s comment about clamping. It may not be allowable, but it certainly works, particularly with owner occupiers and their guests. You only need to do it once. Word gets out very quickly…
Hello, thanks for dealing with the parking issue. I live in a 89 unit complex which has ample green space and visitor parking in a battle axe block set well back from the public road. I believe that our complex is unique in that all driveways are common property and some units have RV type carports accessed by a seperate driveway ie common property. Many unit owners park on their Non exclusive driveway and some park permanently in visitor spaces. In the five years I have been here I know of no enforcement action being taken. Recently I parked my caravan (which was stored of site) in a visitor’s spot to load up for holidays. The Committee Secretary spoke to me regarding parking, I said thanks but felt, even though I was in the wrong, it appeared the bylaw was being selectively enforced and ignored the request to move my van before I was ready. The Secretary was not happy and now I am labeled a troublemaker. Am I correct in assuming that there are no winners in the parking issues.
Hi John
The following response has been provided by Chris Irons, Hynes Legal:
I’d say your situation is less about parking than it is about by-law enforcement and, dare I say it, communication. Yes, all by-laws must be enforced by the committee, but every situation must be considered on its merits and supported by evidence and the proper process. No, it’s not up to the secretary or any one member of the committee to enforce by-laws – it’s a decision of the committee – but there’s absolutely nothing wrong with the secretary having a chat with you and asking you to move your van. That’s not by-law enforcement, that’s just a discussion about what the rules are.
By your own words, you admit you were in the wrong with how you’d parked and at that point, while I appreciate you might think it unfair that no one else has had a ‘talking to’ about it, you don’t know for sure that’s the case and even if you did, it still doesn’t change the fact you were in the wrong and declined to do anything about it.
As for being labelled a ‘troublemaker’, based on my extensive knowledge of the legislation I can’t see anywhere where there’s provision for a committee to declare anyone a troublemaker, let alone any consequence for it. Similarly, there’s no consequence – no legislated one, anyway – for the secretary not being happy with you. So what to do now? Well, it’s up to you. You can approach the committee to enforce by-laws every time you see one being breached. You can put up a motion to a general meeting to have that by-law changed. You can reach out to the secretary to smooth things over. Or, you can go on as is. If it were me, I know which one of those options I wouldn’t be pursuing.
Our onsite offstreet parking beside our building does NOT say “”visitor”” parking. As our lots only have 1 allocated basement Carpark, for the last 11years since I’ve owned, residents use these parks ???
We live in 52 Unit Complex in Bulimba and some Units are Rented and some Owned . There are some 75 car parks in the building and 5 visitor spots with one Disabled Lot. The undeground carpark is locked and tenants allow their friends to use the visitor car parks under printed signage stating a max time of 7 hours in the by-laws. We have had tenants providing access to their friends with electronic unlocking l with some staying days in the one of the visiting spots. The committee has warned these people to move their car to the road but still they take no notice. We leave notes and put up signs but these seem to be ignored
By giving these offenders an allowance of one overnight stay as gesture of understanding ,they continue to abuse the limit and refuse to move their vehicle. Can you tell us what can be done , we have breached the person who permits entry but we are frustrated and need some guidance .
Hi Geoff
This article – QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors! should assist. Specifically this Question: One lot owner abuses our visitor parking in apartments by allowing their friends to park in the space all weekend or overnight. What right do we have to police this?
All the best with the matter
Our body corporate is very lax in following up on parking violations against the by-laws. Nobody is supposed to be parking along the roadways in our complex of 125 townhouses, but it happens so often on the weekends and at night that it has become too difficult to manage and gets overlooked. Recently our neighbour has started parking in front of a fire hydrant outside his residence. I politely mentioned it once and he moved the vehicle, but he and his visitors have been parking in front of it more frequently. Does the fact that the vehicle is parked in front of the fire hydrant affect the rules for towing?
Hi Judy
We’ve received this response from Todd Garsden, Hynes legal:
If an owner is concerned with occupiers parking on the common property then they can submit a form 1 to the body corporate. If the body corporate doesn’t then take appropriate action the owner can seek to enforce the by-laws.
Admin: this article may assist – QLD: The golden rules of bylaw enforcement + Q&As
What rights do I have as an owner when someone parks in my exclusive use parking space
Hi Tanya
We’ve received this response from Todd Garsden, Hynes legal:
There are two option available when someone is parking in your exclusive use area – similar to the above, seeking that the body corporate enforce the by-laws or, a riskier approach, considering having the vehicle towed (if the towing regulations are complied with). This is hard to prove as you need to evidence consent of the parker to being towed.
Hi Nikki
The person in question is not an occupiers or a visitor just a girlfriend who thinks she has the right to park on common property when our bylaws state that nobody is allowed to park there. I have just send a form 1 to bodycorp is there another way I should approach the matter and how long do I wait till bodycorp does something.
Thanks Mary
There is a tenant that has a visitor that parks her vehicle on common ground and stays every night. There is a sign in out driveway that stimulates Tenants vehicle only. The person in question is not a renter and the person in question is renting. I am an owner and also on the committee. I have taken this matter up with my bodycorp but they have not gotten back to me.
Hi Mary
Thanks for your question. We have received the following reply back from Todd Garsden, Hynes Legal:
The first issue is whether the person parking is an occupier or a visitor. If they stay every night that sounds to me to be more like an occupier – they don’t have to be on the lease to be an occupier.
See this post: QLD: Q&A I Don’t Live Here. I’m Only Visiting … Every Night
Then it is a matter of what the by-laws say. Usually, there would be restrictions on where occupiers (and visitors) can park. If the parking is contravening a by-law then the owner should send a Form 1 to the committee asking for the by-laws to be enforced.
Dear Strata,
I have a problem with my parking space. I run the business at the medical building. My lot get one parking which I clearly put the sign up that it’s only MY NAME who can park there, still, loads of car parked there and it’s really stress me out!
I now put up a sign saying “You are parked ILLEGALLY. Your number plate has been noted. You will be towed if you park here again”. Then, someone tore my sign off.
I contact numerous times to Body Corporate, before this, I kindly asked for CCTV footage because my car got crashed in the parking lot and since then until now (More than 1month), I have not received any CCTV footage yet. My Body Corporate works slow, helpless, and rude. Do you have any suggestion regarding this matter? I have no idea what to do!
Hi Nahathai
We have received the following reply back from Frank Higginson, Hynes Legal:
The starting point is to confirm absolutely that it is yours. That means it has to be on your title or granted to you by exclusive use by-law in the CMS.
If it is not, it is common property and that then gets ugly because anyone can use it, subject to the by-laws.
If it is yours the easiest way to stop this happening is probably to install some kind of blocking device – which would need body corporate consent. If others have them, or if the body corporate is refusing to enforce by-laws, it would probably be reasonable to allow you to protect your space in this way by preventing others accessing it.
CCTV footage should be a body corporate asset. You would be entitled to it. If they don’t provide it, I would complain to the police in the first instance about the damage to your car. They would probably get access quicker!
Failing that you may need to go to the Commissioner’s Office to seek orders around these things.
Hi. Before you remove any vehicle, take photos of it with your mobile, which registers the time. Make sure you get close photos, and then again on the truck, because some owners, furious you have had it removed, maintain it was damaged, so you get to pay for all their panel work. Your photos will protect you from that.
Hi Annie
We have received the following reply back from Frank Higginson, Hynes Legal:
Fine, assuming that you have the right to do it in the first place!
I wouldn’t do it, tempted as I am with one unit owner and his SIX CARS, four of which grace our visitors car park, but I can understand those who simply lose it and do. Just make sure you have photos, if tempted.
Can a committee change/make by-laws contrary to council requirements
Our scheme is in a dead end Street and we have 35 townhouses in a gated community with 17 car spots marked as “visitor parking” four of which are are at the front of the complex marked for mail collection only (??) which would suggest they would be only for a few minutes however the council by laws require 1 visitor carpark is required for every 8 residential properties ie in this case a council requirement would be approx 4 allocated visitor parks for the complex… I suspect in the development application off street parking was to be allocated within the grounds so as not inconvenience our neighbours outside the complex however these parks are now visitors only (and may I add rarely used by visitors) and residents are asked to park illegally outside the complex (there is no street parking and very limited parking bays in the adjoining streets
Hi Anna
We have received the following reply back from Todd Garsden, Hynes Legal:
If the development approval requires a particular condition to be met – such as a minimum number of visitor car parks – and the body corporate doesn’t meet that conditions, the body corporate is at risk of the council taking enforcement action which can result in significant fines.
So the body corporate needs to make sure that it meets the council requirements.
G’day,
A third party not affiliated in any way with the townhouses I live in continuously parks in the visitor spaces for our units, it is signed, and even has folding bollards stating the parking is strictly for the residents of our precinct. Can I have their car towed?
Hi Chris
We have received the following response back from Todd Garsden, Hynes Legal:
Depending on the circumstances it is possible – but you still need to prove consent, which means the specific signage becomes very important.
My Body Corporate has recently engaged the services of a parking company to manage the visitors car park without giving notice to the residents. The parking company has erected signs stating 4 hours maximum parking and have been handing out fines to people for overstaying this.
Is the body corporate allow to do this?
Hi Kieran.
Thanks for your question. We have received the following reply back from Frank Higginson, Hynes Legal:
Is the body corporate allow to do this? No.
Hi,
My vehicle recently got towed from my own apartment block which I feel I have been clearly done over. So my cousins staying at my place over the holidays and she used the vehicle to nip to the shops and on her return she’s parked in a reserved bay which is located in the visitor parking area. Theres roughly 12 visitor spots and 4 reserved parking spots that the company next door use, there is tow away signs displayed but I feel its really un fair as my vehicle is register with my building in which I pay rent every week. The building manager was not even notified and had no clue when I asked him surely they should of notified him and he could of checked that my vehicle belonged to a resident in the building.
What are your thought? Have I been hard done by and is there anything I can do as I have just had to pay $550 to retrieve my vehicle. Not only that but my vehicle has been scratched when removing it so who’s liable for that? the tow company or the company next door?
Hi Elliot
Thanks for your comment. We have received the following reply back from Frank Higginson, Hynes Legal:
I don’t understand how common property car parks can be ‘reserved’
They are common to all owners or they are exclusive to one. The alternative would be some form of formal lease or licence to third parties.
I obviously need more detail to confirm but this sounds a bit underhanded to me.
Is there any difference in what you can do when dealing with a vehicle (owner another tenant, visitor or unrelated party) parked in a way that blocks access to a residents parking space or garage?
Does the BCM or tenant who has access blocked have the ability for a prompt remedy to move the vehicle or is this a police matter? I assume this is an established precedent for private property where there is a trespass involved.
Hi Mark
Thanks for your question. This reply from Frank Higginson, Hynes Legal:
It is still a civil / by-law matter.
First rule is to find the car owner and ask them to move.
Second is to leave a (nice) note on their window asking them not to do it again.
Third (getting a little more aggressive) is to park them in too and leaving your number on their window.
Last resort is a Commissioner’s application to prevent future conduct.
No one can remove cars without an order.
So tomorrow if I come and park my vehicle on your property in your driveway in front of your garage and you cannot get your car out to go to work in the morning that might not be Ok? However there is nothing your can do about it?
I fail to see the common sense or logic to your reply, even if what you say is legally correct. Assume you could take me to court for damages as a civil matter after the fact? I’d have the vehicle forcefully moved only as far as necessary to enable me to get access. If this stays on private property including the BCM common property I doubt the law is really so one eyed as to favour the offender?
Hi Mark
This response from Frank:
The differences are:-
· my house is not contained in a community titles scheme;
· the car is parked on my property and not common property.
but even having said all that, if someone parks across my driveway and I don’t know where they are my options are still what I laid out in my response in the first instance.
If an owner of a property was to park in visitor parking – against signage, can their car legally be towed? Or can they be issued with a breach notice?
Hi Rhiannon
In reply, Frank Higginson, Hynes Legal points you to this section of the above article:
“If it is an owner or occupier, then the only way to tow it away is by an adjudicator’s order. Put up as many warning signs threatening immediate towing as you like – if you want to enforce by-laws then there is a process to follow.”
Thanks
Hi a family member visited us on Saturday and stayed over for the night. In the morning his car had been towed away at 1.30am. There are clear signs stating parking for 6 hours only in the visitor car spaces. In the past the managers are very helpful with issuing a permit for the over night stay. In this case it was after hours and we did not apply for one.
Now the crunch. The fee to recover the car was $550. Our building is in Labrador and the tow company is in Nerang. The sign says charges from $440 but we had extra surcharges due to the building location. To top it off we could only collect the car between 10.30am and 12 mid day. 1 and a half hours. Not very convenient when they live in Redland Bay and could not leave early.
The building is Sapphire in Labrador Street Labrador Qld 4215. It is a secure locked up car park under the building so clearly the car was a visitor or guest to the building.
Do I as an owner have any recourse or action I can take.
And most important is it legal to tow away the car.
Many thanks
Al Rennie
Hi Al
We have received this reply back from Frank Higginson, Hynes Legal:
A genuine visitor to a building cannot have their car towed without an order from the Commissioner’s Office. The owner of the lot who was being visited should pay the amount and then seek reimbursement of it from the body corporate – and they would almost certainly win if it got as far as adjudication.
Has there been any update to the law in relation to Body Corporates/Managers being given power to tow illegal parked cars. Your article is dated October 2014. Has there been any progress with this?
Hi Redcrab01
Thank you for your comment.
Frank Higginson, Hynes Legal has provided the following in reply to your question:
We have a discussion paper out about towing cars, the comments on which closed ages ago. We are yet to see what the government does in response to it.
Has there been any recent changes to this?
I’m researching a property and I’m seeing reviews where some Building Managers still tow visitor’s cars in visitor parking if the 6 hour parking limited is exceeded.
Hi Bill
Frank Higginson, Hynes Legal has provided the following in reply to your question:
The law has not changed in any way.
A friend of mine has just had his car towed from a visitor car parking space at the building I live. There are signs all over the visitors car parking stating that all visitors must park for only 8 hours and saying that all visitors must display in a paper a phone number and the time they parked in. It is also stated that failing to do that would result in having the car towed.
My friend parked his car in one of the visitors spots but didn’t have a paper/pen in his car; he also forgot to ask me for that when he came to my apartment . After 35 minutes approximately his car got towed and he had to pay $660 to get the car back. There were several available visitors car spaces in the building at that time, so it wasn’t causing problems to anybody.
I know he hasn’t complied with the rules stated in the signs of the building, but he was definitely a visitor since he was at my apartment visiting me – a resident of the building. And he just forgot a piece of paper!!!
Is there anything he could do in this case to try to get his money back? Is the body corporate/towing company completely legal/right at towing his car just because of the lack of a piece of information in the dashboard?
Hi Rafael
We have received the following response back from Frank Higginson:
If there was an exam for body corporate lawyers this would be a legitimate factual scenario!
In my view the visitor has been very badly done by.
He was a genuine visitor. A body corporate cannot limit a visitor car park 8 hours. There is a very good argument that it cannot limit hours at all, but certainly 8 hours is not anywhere near enough to the extent that a time limit was reasonable.
Imposing an obligation on visitors to leave the note in the car? To be honest I haven’t seen this before, but there is probably an argument that is a reasonable suggestion. It makes sense in the context of being able to tell who belongs to where.
Towing the car without notice? Under the BCCM this is unlawful. The by-laws were breached. The remedy for that is a notice of breach of by-laws, with a chance to rectify the breach. There is no ‘self help’ remedy under the BCCM Act to take action without following the proper statutory processes.
The owner could reimburse his friend the costs and then make an application to the Commissioner’s Office for the body corporate to reimburse it. The friend does not have standing to bring an application but the owner does. He would be likely to succeed in my view.
There is an argument that the signs everywhere amounted to implied consent to tow under other state legislation (like you can have with private property), but how that relates to the BCCM Act has not yet really been ventilated. The Commissioner’s office would not take that into account in any event as it is beyond their jurisdiction. They look at by-law enforcement and the rules on that are clear (and as per my prior article – above).
Hi Lisa
Frank Higginson, Hynes Legal has gotten back to me with the following response to your question:
Generally before a car is towed, the owner of the car must have consented to the car being towed (ie through clear signage) and the towing must be done by a licenced tow truck driver.
Without the consent of the car’s owner being obtained, there are significant fines that can be imposed. We stress that putting up a sign will not give a right to be towed or demonstrate consent – it depends on the individual circumstances.
I was at a meeting this week when this issue came up. An owner was querying their rights when someone parks in their exclusive use space. Could they have the vehicle towed?
The BCM noted they body corporate could have nothing to do with that and if the owner took that option they would need to deal with the repercussions themselves.
What would be the likely outcome if a lot owner had a vehicle towed from their exclusive use area?