Letters to Peter Berry

These are the emails passed on to Peter Berry, Head of Policy Development at Fair Trading and to which he replied. There's a link to his letter on the Flatchat page.

My husband and I own an apartment in a block of about 80 units. When we purchased the unit, we also purchased two underground car spaces which are clearly labelled (in bright yellow paint on the ground) with our unit number, as are all the other car spaces in the basement car park.
We have encountered, numerous times, what we are sure is a common problem; coming home and finding someone illegally parked in our car space. This causes much frustration, especially when the local police provide answers such as "it's private property so it's out of our hands" or "you could have the car towed at your own expense and then you are liable for any damage caused to the car" or "call your strata managers" (which is my favourite response when it's 6pm on a Saturday).
It seems that we, as the owners of the private property, are the only ones without any rights, and that the owners of the illegally and inconsiderately parked cars, seem to know that we can't do anything about it!!!

Is that the truth? Is there nothing we can do, or are you able to help provide some direction as to what our rights are, or what options we have?
C&JF

We have an ongoing problem with visitors' parking in our block of apartments. At most times the visitor parking spaces are occupied by the cars of residents of the building or cars belonging to people who are neither residents or their visitors. This prevents bona fide visitors, including tradesmen from using the car spaces. Signs clearly displayed behind each visitor car space state "Visitors' parking only. 24 hour limit. Residents Prohibited."
Also, cars are parking in the driveway which is also common property.

By-law # 2 of the strata plan states:

2 Parking:
2.1 An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the prior written approval of the owners corporation.
2.2 The Owners Corporation shall have the following powers and authorities, in addition to those conferred upon it by the Strata Schemes Management Act 1996 and the by-laws:-
a) The power to do one or more of the following in respect of a vehicle, the property of an owner or occupier of a lot, parked upon common property contrary to the by-laws;
(i) the power to remove the vehicle from the parcel;
(ii) the power to move the vehicle within the parcel;
(iii) the power to distrain the vehicle by such reasonable means as the Owners Corporation determines; and
(iv) the power to affix a sign to the vehicle.
b) the power to recover the costs of exercising any power pursuant to this by-law from that owner or occupier as debt in any court of competent jurisdiction

Does the strata plan have the powers as outlined in 2.2a) & 2.2 b) or in the Strata Schemes Management Act 1996?
If yes, how do we enforce the by-law?
If not, do you have any ideas how we can prevent this ongoing problem?
We are considering installing a gate on the driveway to prevent uninvited intruders, however this won't prevent residents from using the visitors' parking.
Greg

I live in and am a member of the EC of a small 10 unit complex in Burwood just off the main road and which proves to be very popular with the general parking public.
I have the mis/fortune of living right above the 3 visitor parking bays we have and being able to look at the drive way and adjacent access ramp to the building, so I get to hear cars coming and going along with the closing of car doors.
I make a note of who comes and goes as does the other EC member and we regularly trade information.
If I observe a "illegal" parking and leaving I approach them and advise them that we do not provide FREE, OFF STREET, UNDER COVER PARKING and that they are in fact trespassing on private property, when they are not "visiting" our block and that there rego and car details has been noted. Its quite amusing to hear the excuses that they offer, such as shopping, no parking on the street, but they are firmly and politely asked to leave. It seems to work 90% of the time, the problem is you have to be there to catch them, I have given some thought to a security camera system that is activated by movement, however cost and concerns about privacy etc have put this on hold.
We have placed numerous notices on cars that breach our space however they just get thrown on the ground but what I have found to work the best is to let down one or more tires and yes I know it may not be strictly legal but as you rightly point out we have NO rights on our own property. That seems to get a certain message across to them and they tend not to do it any more. That tip I got from a real estate agent who actually removes the valves from the tires.
We also have 2 churches very close and they are some of the worst offenders, strange given 10 commandments etc. We have even had people who work for Real Estate companies park there and they of all should know better as I'm sure that the residents of unit blocks that they look after ring about this issue all the time.
Perhaps a solution could be one like the concept of "Enclosed Grounds" like a lot of schools have, where it if you don't have a valid reason to be there you can be charged with trespass, not that I suspect the police would do much about it, but its some thing that could be put to Fair Trading.
We are in the process of putting up a number of signs warning would be illegal parkers of what they could face and due to the area will need to have some of them in Chinese.
Another point is to know your fellow residents, their names, unit numbers, regular visitors etc as this helps to quickly weed out those trying it on by saying I'm here to visit Mr Smith in U3 and he's not here at the moment so I'll just duck down the street for a moment, when you know that its Mrs Ng who really lives there.
Cheers CC

We've been having an ongoing battle with rogue parkers, especially those who are tradesmen working on a building site in our street. Unfortunately if we go to the expense of buying a wheel clamp, they have the tools to cut it off leaving us with a useless piece of metal.
The majority of rogue parkers know that the owners of the property have no power to do anything. They know the police wont do anything, most of them know tow truck drivers (or are towies themselves), in addition as people park illegally on the street opposite our unit block we can't have offending vehicles towed either as there is no space for the tow truck to manoeuvre. We are so powerless!!! I've also been on the receiving end of taunts and threats by offending parkers when they've been asked politely not to park on our property. It is very stressful and I feel unsafe as I've even had one drive at me (police call it a neighbourhood dispute and don't want anything to do with it - even though the rogue parker isn't even a local resident).
The one thing that would possibly be the solution would be for individual councils to make it an offence to which you could call the Ranger and have the offender fined. To make it a criminal offence to trespass by parking on private property without authorisation! The laws are there for those who are the problem not those who are entitled to "quiet enjoyment of our property". It's about time councils took the lead that our police "service" refuse to and start punishing those that are causing great stress and upset to those wanting to enjoy what they pay for. I'm on the executive committee for the unit block I live in and I spend way too much time and expense trying to deter rogue parkers. I've even had one rogue see me walk out of our unit block and head towards where our vehicles are parked waiting to jump in my spot (the cheek and disrespect).
Kylie

As a lawyer and a former executive committee chairman it was interesting to read the above article on 4 March.

The legislation needs some teeth in relation rogue parkers. As you would be aware,the Owners Corporation can issue a " Notice to Comply" and later apply for a penalty against the offender. This process is too slow and labour intensive.

Parking on another persson's car space in a strata scheme or parking on common property without consent should be treated as an offence in a similar way to trespass. Have a look at the Inclosed Lands Protection Act, in particular Section 4.

New offences should be created, (and they are in draft form only) for example:

"Any person who without lawful excuse (proof of which lies on the person) parks or stands any motor or other vehicle on a lot [in a strata plan] without the consent of the owner or lessee or other person lawfully occupying or using the lot is guilty of an offence.."

A similar offence could be created in respect of parking on common property without a lawful excuse and without the consent of the owners corporation.. This would deal with people who park on "Visitors Parking" whether they be occupiers in the building or from outside the premises but not bona fide visitors.

My tenant in our unit in Woollahra recently confronted a person who lived across the road and was using our visitors parking.

The proposed offences would be penalty notice offences in the same way as a parking offence in a public street. An "authorised officer" of an executive committee or strata managing agent would have to have power to issue penalty notices in a similar way to the powers now enjoyed by Council rangers. There would have to be some system for a person to "qualify" to issue penalty notices. Perhaps such a system could be used initially in large strata schemes where there may be someone available on site to police the types of activities referred to.

An owner or any resident apart from a "short term visitor" should be required to notify the owners corporation of particulars of any vehicle (used by him/her) and parked or likely to be parked on the premises. The owners corporation is entitled to know which vehicles are used by residents so that offenders can more readily be detected.

The present "system" needs a big shake up.

Keep up the good work in your Saturday column.

GBW

We have a real problem with this at King Street Wharf and numerous other sites that we manage. My Committees would like me to clamp offending vehicles whenever they park in common area or their private car spaces.

I am obviously concerned about the legal implications imposed by taking this action, however we have exhausted all other avenues.

The article states that clamping is an issue although it's less clear-cut, can you confirm our legal right in relation to this and advise if "legally" we can do so as long as we place a notice on the windscreen of the offending vehicle that this action will be taken unless the vehicle is removed.

CP