An owners corporation may make rules for vehicles and parking on common property. Clause 3.2 of the model rules provides:
“An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle, or permit a motor vehicle or other vehicle – (a) to be parked or left in parking spaces situated on common property and allocated for other lots; or (b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; (c) in any place other than a parking area situated on common property specified for that purpose by the owners corporation.”
Disputes often come before VCAT concerning a lot holder’s use of a car space for storage or the prolonged use of common property for parking. Rules are to be clearly drafted and explained to avoid disputes that may result in a VCAT Application. Pursuant to section 166 of the Owners Corporation Act 2006, VCAT may impose a civil penalty for breach of the rules of up to $250.
Use of parking by third parties - the problem
While Owners Corporations may make rules to deal with owners and tenants who park illegally, they are unable to make rules affecting third parties. Section 90C of the Road Safety Act 1986 prevents the detention or immobilisation of a vehicle, whether by use of wheel clamps or any other means of immobilisation that has been parked or left standing on a private property.
Also pursuant to section 70 of the Road Safety Act 1986, it is illegal to tamper or interfere with a motor vehicle or “specified equipment” fitted or attached to a motor vehicle.
Under section 90D of the Road Safety Act 1986, it is possible for an owners corporation to enter into a private parking agreement or PPA with a local council to prevent illegal or unauthorised parking on owners corporation property.
Each council will have its own information brochure for an application for a PPA. This will usually involve an application accompanied by a parking plan and site plans obtained from a traffic engineer.
Once in place, council officers will patrol the owners corporation car park and issue parking infringements where contrary to the parking rules and arrange for vehicles to be towed where necessary.
However, a PPA may not be a practical solution for all owners corporation car parks such as multi-level underground car parks.
Police will generally not get involved unless the illegal parking involves blocking a driveway or causing obstruction to traffic. Similarly, abandoned vehicles will only be removed by council following a lengthy procedure. Legal options for the courts are limited to actions for trespass or nuisance. However these can be costly and may not produce a satisfactory outcome.
Preventing access to parking by third parties and proper signage advertising parking restrictions is the more practical solution. Security can be enhanced by the use of CCTV cameras and pin codes which must be reviewed regularly, especially when Tenants vacate a premises.
Other measures include adjustment of the speed of automatic roller doors to allow only access by one vehicle at a time, replacement of automatic doors with controlled high speed boom gates with residential and visitor swipe cards, or adopting protocols for residents, visitors and lessees regarding access and use of the car park.
Where parking is at a premium, particularly in shopping and sporting precincts, frequent reminders of parking restrictions ought to be given to all lot owners and their Tenants. Visible signage will also assist in reducing any problems. It is advisable to avoid confrontation with the drivers of illegally parked vehicles at all times. Self-help measures are to be avoided as well as any interference with vehicles by an owners corporation or its lot owners.