Parking in a Community Titles Scheme
Visitor parking or parking on common property is an issue that can be regulated by a body corporate.
The ability of owners and occupiers who live in a community titles scheme (CTS) to park on the common property is subject to the by-laws registered for the scheme.
Most parking by-laws prohibit owners and occupiers standing their vehicle on the common property without the approval of the body corporate. You would need to check the by-laws for your CTS to find out if your body corporate has a parking by-law. By-laws are registered with the Land Titles Registry which can be contacted on 1300 255 750.
If an owner or occupier is parking on the common property without approval or in a regulated parking area, the body corporate may take steps to enforce the by-law.
When a developer of a CTS submits their plans to their local council authority they are required to provide for a certain number of regulated car spaces for their development approval. A regulated car parking area is an area of scheme land that is designated as being available for use, by invitees of occupiers of lots included in the scheme for parking vehicles. It is not to be used by owners or occupiers.)
Enforcing parking by-laws
The body corporate must enforce the by-laws that are registered for the CTS. It can do this by verbally warning an owner or occupier, writing an informal letter or by issuing a contravention notice. If you are parking on the common property without approval or in a regulated parking space the body corporate can enforce the by-laws to make you comply.
Enforcing parking by-laws
There are two types of by-law contravention notices the body corporate can give to an offending owner or occupier.
Continuing contravention notice
If you are given a continuing contravention notice (BCCM form 10) the body corporate believes that you are in breach of the by-law and that you are likely to continue to be. For example if your car is continuously parked in the visitors’ car park space without prior approval that may be a continuous contravention of the by-law. If a continuing contravention notice is served it would require you to stop the breach within a certain time.
Likely future contravention notice
If the body corporate decides to give you a likely future contravention notice (BCCM Form 11) then the body corporate believes that you have breached the by-law and believes that the contravention will be repeated. For example if you have parked periodically on the common property without approval from the body corporate a future contravention notice may be issued. The future contravention notice remains in effect for a period of three months or a lesser period stated on the notice. If you breach the by-law again during this period the body corporate can take further action.
More information about enforcing by-laws can be found on the BCCM website.
Towing vehicles from the common property
The BCCM Act does not specifically or expressly regulate or provide for towing of vehicles. There may be common law rights for a body corporate to tow a vehicle from common property which is separate from the body corporates right to enforce the by-laws.
Depending on who is parking in the wrong place on the common property the body corporate may be able to tow your vehicle if you are not connected with the scheme, without following the prescribed by-law process. The body corporate may want to get independent legal advice before towing a vehicle to ensure it knows its liabilities.
If a body corporate decides to tow a vehicle of an individual not connected with the CTS, based on its rights under common law the action would not be covered under the BCCM Act. Regardless, the decision of the body corporate to arrange for towing would still need to comply with the BCCM Act. For example, the meeting at which the decision is made would need to be compliant and the decision itself needs to be reasonable in accordance with the BCCM Act. Adjudicators’ orders that have considered the issue of common law rights for towing are:
Mt Gravatt Business Centre [2017] QBCCMCmr 315 (26 June 2017) and
Aztec on Joyce [2013] QBCCMCmr 28 (29 January 2013)
Adjudicators from BCCM have stated that the body corporate must follow the by-law enforcement process, when dealing with owners and occupiers within the CTS, and be authorised by an adjudicator or the Magistrate’s Court before towing a vehicle. An order where the adjudicator has authorised the towing of a vehicle is Fernbrook [2015] QBCCMCmr 330 (14 July 2015)
While a body corporate can adopt by-laws which regulate parking on the common property a by-law stating that the body corporate is authorised to tow vehicles may be invalid especially if the by-law purports to give the committee or body corporate powers to override the by-law enforcement process in the Act. An adjudicator considered the validity of a by-law about towing in the following order Everton Green [2011] QBCCMCmr 576 (21 December 2011)
The body corporate may be found liable for damage to property if it tows a vehicle. In some cases the body corporate has had to pay the cost of recovering the car back to the owner of the vehicle. The liability of the body corporate was considered in the following order: Maranoa Lodge [2009] QBCCMCmr 219 (11 June 2009).
Towing vehicles from an owner’s property
If a person parks in a carpark that is part of another person’s lot, the owner of the lot should deal with the offending person directly. If a person parks in a carpark on common property that another person has exclusive use of under the by-laws, the person who has the right to use the carpark can deal with the matter through the by-law enforcement process. An owner may have rights to tow a vehicle parked illegally on their own property, but again, please seek legal advice first.
If a decision is made to tow a vehicle
To engage a towing operator to monitor and enforce the conditions of your parking area, the towing operator must be licensed with the Department of Transport and Main Roads (TMR), they must use licensed tow trucks and employ TMR accredited tow truck drivers and assistants.
Once you have chosen a licensed tow truck operator, you must enter into a contract with them authorising the removal of vehicles parked on the property. It is also important to provide motorists with fair notice of the parking terms and conditions that they cannot park on the property. For this reason, it is recommended that you display clear signage in the parking area before arrangements are made for unauthorised vehicles to be towed.
A fact sheet containing further information for property owners and occupiers can be found at the TMR website: http://www.tmr.qld.gov.au/business-industry/Accreditations/Tow-truck-licensing-scheme
For general body corporate information, contact the BCCM on 1800 060 119 or www.qld.gov.au/bodycorporate
Important Information
BCCM provides information on the Body Corporate and Community Management Act 1997 (BCCM Act). More information about the legislation can be found on the website at www.qld.gov.au/bodycorporate
Information for this fact sheet was sourced from The Department of Transport and Main Roads (TMR) website which provides information about towing requirements for the removal of vehicles parked on private property.
This article was contributed by The Office of the Commissioner for Body Corporate and Community Management
If you would like further information or have a question about this article, please contact the Office of the Commissioner for Body Corporate and Community Management by phone on 1800 060 119 or by submitting an online enquiry at www.qld.gov.au/bodycorporatequestion
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Thank you Commissioner for this very comprehensive article. Excellent content as usual.
Parking is a huge problem for some Bodies Corporate and the law needs reform. The by-law enforcement process is the wrong vehicle to address this problem (pun intended) OR it needs to be amended to speed it up (at least in respect of this issue). In either case the legislation needs a rewrite.
The issue is what to do until then…
For some years I have been working on developing strategies that can speed the enforcement process, to the point where towing can be lawfully achieved and / or resolve parking problems in other ways.
These strategies are now ready to be tested and I welcome enquiries from any Body Corporate with significant parking problems.
We own and live in an apartment at Hervey Bay. We have one car which we park in our garage.
The parking at this complex is most unsatisfactory. We have a tenant’s car parked right across the walkway which leads to our apartment. I deem this quite dangerous especially if emergency vehicles have to access our complex. There are boats on trailers parked in car parking spaces. A rusty old van which hasn’t been started for at least 3 years + is permanently parked in a car park. There are cars parked in front of garages which makes it difficult if you are passing and another car is coming in the opposite direction. Also there are cars parked on blind corners which causes cars to change lanes into oncoming traffic. There are visitor’s cars parked alongside the fence which leads to an automatic opening gate.
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