If you own a property within a Body Corporate, undoubtably at some point you have come across disputes within the parking area…
Particularly, the abuse of visitor car parking can be the trigger for an enormous amount of angst.
Interestingly, the Body Corporate and Community Management Act 1997 (BCCM Act) does not define who a visitor is, so we are left with dictionary definitions and adjudications (and perhaps even a dose of common sense, as scary as that may seem to be).
You need to have a lawful visitor parking by-law… If you don’t have that, you have nowhere to go!
A simple example is set out in Schedule 4 of the BCCM Act (pictured below).
A visitor is someone who (obviously enough) visits which includes:
- to pay a call on as an act of friendship or courtesy;
- to reside with temporarily as a guest;
- to go to see or stay at a place for a particular purpose;
- to go or come officially to inspect or oversee.
As you would expect, there have been quite a few adjudications over the years.
In terms of Airbnb properties, one such case was;
This was a dispute about short and long-stay occupants using the visitor car parks.
There does seem to be some uncertainty about who constitutes a genuine visitor to the scheme and will be entitled to use the visitor car parks.
There seems to be a general understanding that occupiers of the scheme are not entitled to use the visitor car parks.
However, the distinction between an occupier and a visitor may not always be completely clear.
As a General Rule
People renting an apartment for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers.
People just visiting for one or two nights of that period would normally be classed as visitors. Similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor.
The more difficult questions arise when a person stays for a number of nights or on a very regular basis. In those cases, it will be necessary to look at all the circumstances to determine if they are an occupier or a visitor.
This case was an early decision indicating the difficulties in actually deciding who a visitor was and confirmed that it was not as simple as whose name is on the lease.
What does all this mean?
Basically, it depends on the circumstances.
Occupiers are definitely not visitors.
Clear as mud?
Can a Body Corporate tow a car?
Similar to Visitors Parking, there needs to be a relevant by-law stating that the Body Corporate can tow a car + who bears the cost
Enforcement of this by-law would then be a committee issue.
Again, like Visitors Parking, 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 that is recommended!
Towing a car is no different
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 occupier’s 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.
(Article Accredited to http://hyneslegal.com.au)