This article about strata car parking in Queensland has been supplied by Frank Higginson, Hynes Legal. Let’s see, can you tow a car from visitor parking in Queensland?
We seem to be on a bit of a roll with these newsletters dealing with common by-law issues, so we will continue the theme.
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We have written previously about bodies corporate acting reasonably when it comes to pets here: Further Evolution of the Pet By-law and then went a bit further out on the limb here: Oppressive or Unreasonable By-Laws when we wrote more generally about oppressive and unreasonable by-laws. As a side note, you can now comment on our articles below. There were some rather interesting responses we had to that last linked article, some of which were unpublishable.
We don’t make the law. All we do is advise people on what the current legislation means. If you don’t like what the law is, then get involved in the review of the BCCM Act and have your say. Don’t shoot the messenger. The word on the street is that by-law enforcement will be a part of the next discussion paper issued under the Queensland government property law review, so you will have a chance to have a say then.
We digress.
Strata Car Parking: Can a body corporate tow a car?
Enforcement of by-laws is a committee issue.
There is no scope under the BCCM Act for anyone to solve an issue on their own terms. If a body corporate is going to enforce a by-law then its needs to follow the process set out in the BCCM Act – issue a contravention notice, get an adjudicator’s order and so on. This system can be somewhat toothless, but that is what we are stuck with.
Take the example of a building that has an enforceable pet by-law. A small dog approved under that by-law yaps constantly which is in breach of one of the conditions of the approval related to its occupation of the lot. The process to remove the dog is to withdraw the approval, and if the dog remains: go through the Commissioner’s Office and get an order to that effect for its removal. The process is not to get the master key, go into the lot when the resident isn’t there, grab the dog by the scruff of the neck and throw it off the balcony (or take it the pound if you are so inclined).
Another example that is less theoretical (as in this actually happened) was where a contractor was carrying out work on a lot. They were parked across the lot’s driveway in breach of the by-laws. The chairperson strolled by and noticed that the keys were still in the van and then took the rather robust approach of moving the van himself to where it should be parked so it was not in breach of the by-laws. Not an approach we would usually recommend!
Towing a car is no different. We first covered this in 2009 here: Vital Information on Towing. The distinction everyone has to remember is that a car parked on common property is going to fall into one of three categories. It will belong to either:-
- An owner or occupier; or
- A guest or invitee (someone parking in visitor car parking with an owner or occupiers invitation); or
- A third party with no connection at all with the scheme.
If it is a third party then a body corporate may be able to tow it, depending on what signage has been displayed. This situation is no different to you parking on my driveway without my consent. In effect it is a form of trespass.
The difficulty is knowing who it belongs to.
If it is a guest / invitee in visitor car parking – leave the car be. Adjudicators have rarely taken a liking to restrictions on the amount of a time a visitor car park can be used. Whether it is a friend popping over for a quick two hour lunch or a cousin staying in your guest room for a week over the summer; they are both visitors and the visitor car parking is there to accommodate them.
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.
If a car is parked in an exclusive use space belonging to another owner then that owner may have rights. However, if the body corporate is to enforce them, then the same process will apply.
Yes – the law on this point is frustrating and, to a large extent, toothless. Some changes being explored across the industry (which will no doubt be part of the discussion paper) are:
- Allowing council inspectors to issue fines for illegally parked cars in schemes.
- Empowering adjudicators or even giving a body corporate the right to issue fines for by-law contraventions.
- Giving bodies corporate an express power to tow illegally parked cars.
Would those changes create more problems than they solve? Time will tell.
Read next:
- QLD: Q&A Abandoned Cars in the Body Corporate Underground Carpark
- QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors!
E: Frank Higginson
Director
Hynes Legal
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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.
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?