Scenario A: You are running late for work but can’t get out of the driveway as someone (let’s call them the Unsub*) has left their car smack bang in the middle of the driveway blocking access to the road.
Scenario B: You come home from work / gym/ family dinner and go to park your car only to find someone has parked in your spot.
Scenario C: An Unsub (who may or may not be an actual visitor to the scheme) seems to have laid perpetual claim to the visitor’s parking spot.
What can you do about your parking nightmare where the Unsub is a lot owner or occupier?
If it concerns common property
Parking on the common property without prior permission is generally in breach of a by-law or rule. In NSW if your scheme has the model by-laws, it is in breach of model by-law 2. If your scheme has tailored by-laws you should check them. You should also check to see if there are any by-laws relating to visitors parking. Some scheme’s limit the number of days any one car can be parked in visitors parking and completely prohibit lot owners and occupiers from using visitors parking. If the Unsub is parking in a common property car space that you have exclusive use of, this is also a breach of the scheme’s by-law.
To enforce a by-law parking on common property there are 4 options:
- Have your Owners Corporation serve a Notice of to Comply with the parking by law. If the Unsub continues to park on property after the Notice is served, the Owners Corporation can apply to the Tribunal for civil penalty orders on the Unsub.
- Apply for Mediation with the Office of Fair Trading. Once the Unsub is made aware of their behaviour affects others they may be more considerate in future. It may also be that the Unsub has a temporary reason why they have parked on the common property e.g. they are on injured and can’t climb the stairs from their car space. This is a chance to find out why the behaviour is occurring & if it is likely to be repeated.
- If mediation is unsuccessful, apply for orders requiring compliance by the Unsub with the by-law; or
- Commence court proceedings for breach of a covenant (a by-law has the effect of a contract) (note this can be much more expensive and time consuming than the other options).
If it concerns Lot Property
If the Unsub is parking in the car space forming part of your lot this is trespass. If it is continued it can also be nuisance. This is a matter for you as the lot owner to take up directly with the Unsub by way of court proceedings for damages or for an injunction to require the Unsub to remove the vehicle and prevent them from parking there again. These can be expensive however and you need to take legal advice.
To take any of the actions above you need evidence. The first thing you should do is to take a picture of the offending car, note the date and the time. You should do this every time it happens. Make sure the numberplate is clearly visible for identification purposes. You should contact your executive committee member or, if you do not know your EC member, your building manager or strata manager and report the issue. Make sure you follow this up with an email with all the pertinent information. Keep it factual.
Once you have your evidence, you should check with your building manager, executive committee and strata manager to see if there is a list of registered cars for your scheme. It is helpful in identifying the Unsub, otherwise you need to catch them in action. It is common for larger schemes to request vehicle details from lot owners and tenants. This is extremely helpful in identifying who is causing your nightmare. Incidentally, done correctly, I don’t see this as a privacy issue (as these details should kept by the building manager or strata manager) but rather as a way of keeping people honest. If you know that your details are on file and your misdemeanours can be identified you are far less likely to be tempted.
What if the Unsub is not a lot owner or occupier?
By-laws are only able to be enforced against lot owners and occupiers. If the Unsub is parking on the common property, then your scheme should consider the use of bollards or other means of securing the entrance to the common property parking spaces. Even if there are no means of securing the spaces installing warning signs and CCTV cameras may be a sufficient deterrent. Those options may require s65A resolutions to alter the common property and s47 by-laws.
If the Unsub is parking in your lot property then you can take an action trespass or possibly nuisance as outlined above.
This is general information and is NSW specific. For more information or ACT information contact us at Kerin Benson Lawyers.
* Apologies, I spent Christmas at my mother’s watching CSI or some show where the unidentified suspect was called the Unsub (although may not have been capitalised) and it’s caught on in my household.