NSW: Q&A Stopping the Abuse of Visitor Parking Spaces

How are strata visitor parking rules controlled in your NSW strata building? Find out how other NSW apartment buildings overcome the abuse of visitor parking spaces with our growing list of Q&As on this topic. Have a question to add?

Table of Contents:

• QUESTION: I stay overnight a few times a week at a friend’s apartment and park in visitor parking. I’ve received notes threatening to clamp my car. Can they do this?
• QUESTION: Our strata manager has informed us that we can convert our visitor car park into a unit car space with a special resolution and without having to comply with our development consent. Is this correct?
• QUESTION: Can we change our visitor parking to residents only parking or place restrictions on use?
• QUESTION: If the majority of residents in a strata scheme do not want our parking bylaws enforced, can the strata committee make parking in common areas legal?
• QUESTION: As a visitor, can strata fine me $165 if I park for over 24 hours in a visitor parking spot?
• QUESTION: Our 3 unit lot has one visitor space. All units are rented and one tenant has been given permission to use the visitor parking. Why can’t I, or the other resident, use this spot as well?
• QUESTION: At an AGM one of the owners asked if her tenant could use one of the Visitor Parking spaces. The majority ruled so the tenant was allowed to park in visitor’s parking. Is this acceptable in NSW in 2020?
• QUESTION: A resident has moved into one of the units in our strata, however, she is not registered as a tenant but as an ‘approved resident’. She is considered a visitor and is able to use visitor parking etc. What can we do about this?
• QUESTION: How do you stop residents from parking in visitor’s parking spots?
• QUESTION: Who can park in the car spaces allocated to 2 shops in our building outside of hours? Can they be used as visitor or resident parking spots?
• QUESTION: A permanent sign has been attached to common property without the approval of the Body Corporate. Do we need to vote to have it removed?
• QUESTION: Who has the authority to put a No Parking At Any Time sign in a strata complex? Can it be put up by a resident to stop visitor parking?
• QUESTION: Some staff from the commercial lots in our building park in the strata visitor car parking spaces. As employees, shouldn’t they be stopped from using visitor parking?
• QUESTION: We have a general By-law stating residents must not park on common property without written approval. Is this sufficient or should we specifically refer to visitor parking spaces?
• QUESTION: I was fined for not parking in a visitor parking space at my girlfriend’s apartment. They are pursuing her for the money. Is this parking fine from the owners corporation valid?
• QUESTION: A lot owner has a very regular visitor who has been given a security pass to our garage and his car is regularly in our single strata visitor car parking spot. He has become quite territorial about the space. How do we handle this?
• QUESTION: Some residents in our building use the visitor parking spaces as an additional parking spot. Is it possible to increase levies for these few residents and not all lot owners?
• QUESTION: One of our residents has a very regular visitor who is there most weeknights and sometimes all weekend. When policing strata visitor car parking, when does a regular visitor become a resident?
• QUESTION: Is it possible for the owners corporation to lease out additional visitor parking spaces to a retail lot owner and if so, what would be the process?
• QUESTION: Can access to the visitor parking spaces be restricted for my guests?

Question: I stay overnight a few times a week at a friend’s apartment and park in visitor parking. I’ve received notes threatening to clamp my car. Can they do this?

I stay overnight a few times a week at a friend’s apartment. If there is no street parking, I park in visitor parking. There are no signs up stating the time frame etc for visitors.

I have been getting handwritten notes left on my windscreen threatening removal or clamping of my vehicle. What are my rights as a visitor? Can the owners corporation clamp my car?

Answer: Would you be considered a bona fide visitor given the frequency and duration of your staying-over?

The issue is whether you would be considered a bona fide visitor given the frequency and duration of your staying-over. Further, under Section 651B of the Local Government Act 1993 – Immobilisation of vehicles, it is unlawful to immobilise a vehicle except with the consent of that other person. In our view, the terms of the by-law are unlikely to amount to you having consented, in which case it would likely be unlawful for them to clamp your car.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #614.

Question: Our strata manager has informed us that we can convert our visitor car park into a unit car space with a special resolution and without having to comply with our development consent. Is this correct?

Our strata manager has informed us that we can convert our visitor car park into a unit car space without having to comply with our development consent.

We are atm complying with the minimum 13 visitor car park spaces as per Strathfield council development consent (1 visitor space per 5 units) but if we convert one of them, we will be going against the development consent.

‘Afternoon Committee, any visitor’s car park space can be converted to a lot owners car park space by a special resolution in EGM/AGM. There is no such clause saying council will restrict as the DA had been approved prior and once the occupancy certificate has been issued, owners have moved in and the building is managed by the strata, it will be the majority voting for the motion to be passed out. The car park usage is manned by the bylaws of the building, all we need is to pass a motion to adopt a new bylaw. We have done this at many buildings’

I understand from previous LookUpStrata Q&As that the development consent is enforced at any given time until council says otherwise, in contradiction to what our strata manager has advised.

Is our strata manager misleading us or I have misunderstood your posts?

Answer: A strata building cannot simply pass a by-law for the above conversion in direct contravention of the original development consent.

Development consent for the conversion will likely be required, and, if approved by Council, then by-laws, special resolutions and in all likelihood, a strata plan of subdivision will be required, in which case a valuer will also be required to re-allocate unit entitlements etc

A strata building cannot simply pass a by-law for the above conversion in direct contravention of the original development consent and would be invalid.

At first instance, you may wish to make a telephone enquiry to your local Council to confirm the requirement for a development application and then seek further advice from a planning /strata specialist lawyer. We can provide details of the same if you require.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #611.

Question: Can we change our visitor parking to residents only parking or place restrictions on use?

In a Strata complex with 8 Villas. We have 2 council approved Visitor Parking spaces.

Can we:

1. change both parking spots from visitors to residents only?
2. put a time limit on the visitor’s parking spots?
3. say no visitors cars on premises after 9 pm?

Answer: Check the Council’s development consent conditions.

The development consent from Council for the building will usually include conditions such as the required number of visitor parking spaces. Development consent conditions can be amended with Council approval, but it may be unlikely if the building is relatively new.

Firstly, check the development consent conditions. You can contact your local Council to find out the best way to check these. If the building is old and the Council haven’t digitised records, you may need to sift through boxes of old records.

Here you are looking to see what (if any) conditions there may be around the minimum number of visitor parking spaces required for the building.

It’s then a good idea to speak with the relevant officer at Council about it as you may gain insights into their appetite as well as the process to amend the development consent.

If it looks achievable, planning or legal advice should then be sought to ensure the process is properly executed to change the development consent.

With regards to regulating the use of your visitor parking (such as time limits or hours of use) – a well thought out by-law will help to achieve this. Legal advice should be sought, and the solicitor will guide you through the process, including their insights on what is considered reasonable (bearing in mind, by-laws cannot be harsh, unconscionable or oppressive under section 139(1) of the Strata Schemes Management Act 2015 (NSW)). They will also have experience on enforcement of the by-law and what elements are worth including.

Tim Sara
Strata Choice
E: [email protected]
P: 1300 322 213

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: If the majority of residents in a strata scheme do not want our parking bylaws enforced, can the strata committee make parking in common areas legal?

The strata committee has conducted an online survey with all residents to ask them if they want parking bylaws to be enforced. If the majority of residents in a strata scheme vote against bylaw enforcement in the common area, can the strata committee make parking in common area legal?

What happens to the residents who are affected by others parking on common property? I’m concerned about blocked strata footpaths, internal strata road obstructions, accidents or mishaps occurring due to the relaxing of parking rules.

Answer: The Strata Committee is unable to make such a decision.

The Strata Committee is unable to make such a decision regarding visitor parking. Usually, the council will require a certain number of visitors car parking spaces to be provided as part of the Development Approval conditions of consent.

By this point, I mean that even if the Strata Committee passed a by-law / changed the by-laws to allow resident parking in the visitors parking spaces, it would almost certainly be an invalid by-law as it will put the building into a breach of the DA.

I think the Strata Committee is heading in the wrong direction on this item.

Rod Smith
The Strata Collective
E: [email protected]
P: 02 9879 3547

This post appears in the February 2022 edition of The NSW Strata Magazine.

Question: As a visitor, can strata fine me $165 if I park for over 24 hours in a visitor parking spot?

A building I visit recently made a rule to fine people $165 for using their visitor parking spots for over 24 hours. As we are currently in lockdown and no one is visiting, I decided to use the space rather than park on the street. I am legally allowed to visit, for compassionate reasons. As a visitor to the building, can strata fine me $165 if I park for over 24 hours in a visitor parking spot?

Answer: A 24-hour limit does not appear to be an unreasonable restriction.

There is likely a “visitor parking” by-law in force at the building you visit which will determine if you may park there and the conditions of same. A 24-hour limit does not appear to be an unreasonable restriction. You will be aware that visitor parking is reserved for bona fide visitors only ie it would likely be a requirement that you are present at the building while you park there and that the owner or occupier you visit is present also. As for fines, we are not aware of any cases where such by-laws have been tested in the Courts.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in the September 2021 edition of The NSW Strata Magazine.

Question: Our 3 unit lot has one visitor space. All units are rented and one tenant has been given permission to use the visitor parking. Why can’t I, or the other resident, use this spot as well?

I am a Tenant living in 1 of 3 Townhouses in NSW, all of which are rented. We all have a garage and there is one visitor parking space directly in front of townhouse 3.

Townhouse 3 has always been allowed to park in the visitor car spot while any visitor, townhouse 1 or myself cannot. My property manager recently explained “no one can park in this spot excluding the occupant of townhouse 3. Unfortunately, this is an arrangement with Strata and nothing can be done to change it.”

For this arrangement to be enforceable and legal, does it have to be put in writing under the By-Laws and if so can I request a copy from Strata? I’m interested to see when the actual effective date was and why they have made allowances for that resident and not the other tenants or visitors to be able to park in the visitor’s car spot.

Answer: If the area belongs to Lot 3 under an exclusive use by-law, this would be recorded in the strata by-laws.

You would need to check the actual strata plan and by-laws however this sounds like a breach of what is meant to happen in a strata scheme. If the area belongs to Lot 3 under an exclusive use by-law, this would be recorded in the strata by-laws.

You most likely will be able to apply to NSW Fair Trading for mediation if you wish to pursue this further personally.

Rod Smith
The Strata Collective
E: [email protected]
T: 02 9879 3547

This post appears in Strata News #451.

Question: At an AGM one of the owners asked if her tenant could use one of the Visitor Parking spaces. Majority ruled so the tenant was allowed to park in Visitors Parking. Is this acceptable in NSW in 2020?

I live in a 3 villa complex with 2 Visitors Car spaces. I am the only owner who parks in their garage. The other 2 residents park on the street.

At an AGM one of the owners asked if her tenant could use one of the Visitor Parking spaces even though the tenant has a garage but has elected not to use it.

I said no as I didn’t feel this was fair. Majority ruled so the tenant was allowed to park in Visitors Parking. Our Strata Manager confirmed I was overruled.

I feel if you won’t use your garage then you shouldn’t be allowed to use the Visitors Parking space. Is this acceptable in NSW in 2020?

Answer: No residents may park in visitor parking and the tenant occupying a visitor park on a permanent basis is likely in breach of the development consent for the building.

The visitor parking is common property and use is restricted to bona fide visitors. No residents may park in visitor parking and the tenant occupying a visitor park on a permanent basis is likely in breach of the development consent for the building which requires 2 visitor parking spaces to be available at all times. The tenant’s use would effectively reduce the available visitor parking.

We consider that the tenant’s use of visitor parking is unacceptable in all the facts and circumstances though the standard by-laws do permit the owners corporation to approve parking on the common property “in writing”.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in the December 2020 edition of The NSW Strata Magazine.

Question: A resident has moved into one of the units in our strata, however, she is not registered as a tenant but as an ‘approved resident’. She is considered a visitor and is able to use visitor parking etc. What can we do about this?

Answer: The easiest way to regulate this visitor is for the owner corporation to pass a by-law which imposes time and frequency limits on visitor parking.

The easiest way to regulate this visitor is for the owner corporation to pass a by-law which imposes time and frequency limits on visitor parking including, for example, the requirement that no visitor can use the visitor space unless the visitor is also present at the building. Further conditions might include:

1.1 Every Owner and Occupier of a Lot must comply and ensure that their visitors comply in all respects with the conditions of this By-Law.

That the Owners Corporation be authorised to install barriers consisting of chains or bollards.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #430.

Question: How do you stop residents from parking in visitors parking spots?

Answer: You need to have a record keeping system to work out who’s parking and be able to track vehicles to owners.

You need to have a record keeping system to work out who’s parking and be able to track vehicles to owners. If you’ve got a building manager, it’s easier. It is a difficult problem.

The buildings that I’ve managed without a building manager normally have a member on the committee that’s a covert parking operative that provides us with information so that we can target the offenders and get the result. In those buildings normally we have seen massive improvements but it’s something that needs to be continually managed. It’s something that you need to stay on top of as a building.

What we did at one of our buildings, we have a massive visitor parking area with about 20 spaces. One of the committee members wrote down all the cars and regos over a week period when they went for their walk in the morning. We then had good data we wrote to all the owners and the agents we said “just a reminder, visitor parking on common properties is prohibited for residents. It’s for visitors only. The following cars have been noted and reported. If you are one of them, please refrain and agents please pass this on to your tenants.” So by doing that over a period of time, you can announce to the complex “Great news we had nine offenders, we’re now down to three. These are the three. Three people: This is the final warning before we take you to Fair Trading” and then you can choose to take them or not. But we did whittle them down from say 15 to two. We did have massive improvements on that.

It’s something you need someone from the committee to dive in and be responsible for. I’d probably suggest if it’s a major problem and you’ve got a building around 50 or 60 apartments, that probably should be someone’s key role on the committee to work with a building manager to keep on top of it if it’s a problem for you as a committee.

Rod Smith
The Strata Collective
E: [email protected]
T: 02 9879 3547

This post appears in Strata News #394.

Question: Who can park in the car spaces allocated to 2 shops in our building outside of hours? Can they be used as visitor or resident parking spots?

I live in a small development of 9 residential units and two shops.

Apart from the car spaces allocated to each unit, there are two visitor spaces and four spaces (two each) allocated to the shops and controlled by a covenant that specifies the hours in which the shops (and their invitees) have exclusive use.

There is a dispute at present about the status of the shop spaces outside the covenanted hours. One view is that these may be used by both residents and visitors, and the other view is that these spaces may be used only by visitors. Can you clarify this?

Answer: This is something not to be guessed but clarified once and for all and placed on the scheme’s records permanently.

The covenant should be clear on usage. If it is not, I suggest starting at Council with a written enquiry.

It is most likely the Council who have required that to be written into the property deed. If the Council cannot clarify, then you will need a property lawyer to advise as this is something not to be guessed but clarified once and for all and placed on the scheme’s records (with the strata plan) permanently.

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #364.

Question: A permanent “no parking” sign has been attached to common property without the approval of the Body Corporate. Do we need to vote to have it removed?

A permanent “no parking” sign has been attached to common property by a family which owns 5 of the 11 apartments (without the approval of the Body Corporate).

Do we need to vote to get it removed? Or how do we get it removed?

Answer: The sign it has no legal authority to be there.

If the sign was not installed on common property with permission of the committee then the committee can take steps to remove it – it has no legal authority to be there. The committee administer the scheme between General Meetings of the owners – so how the common areas are maintained and parking controlled is within their gambit.

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #359.

Question: Who has the authority to put a No Parking At Any Time sign in a strata complex? Can it be put up by a resident to stop visitor parking.

Answer: An individual have no authority to do such unless the committee have held a meeting to authorise them to do so on their behalf.

The committee are generally charged with administering the common areas. An individual have no authority to do such unless the committee have held a meeting to authorise them to do so on their behalf.  On many things the O/Corp and committee are interchangeable.

9 Owners corporation responsible for management of strata scheme

1. The owners corporation for a strata scheme has the principal responsibility for the management of the scheme.
2. The owners corporation has, for the benefit of the owners of lots in the strata scheme–
   
   1. the management and control of the use of the common property of the strata scheme, and
   2. the administration of the strata scheme.

3. The owners corporation has responsibility for the following–
   
   1. managing the finances of the strata scheme (see Part 5),
   2. keeping accounts and records for the strata scheme (see Parts 5 and 10),
   3. maintaining and repairing the common property of the strata scheme (see Part 6),
   4. taking out insurance for the strata scheme (see Part 9)

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #356.

Question: Some staff from the commercial lots in our building park in the strata visitor car parking spaces. As employees, shouldn’t they be stopped from using visitor parking?

We have 6 commercial units in our block and some of the staff regularly park in the visitor parking, leaving spaces for visitors unavailable.

The Strata Committee believes the workers in the commercial units have the right to use the strata visitor car parking because they are paying strata levies. I have told them that as they are workers, not visitors, they can’t legally park there.

Am I on the right track? It is a bitter conflict here and I am being abused by the Strata Committee for my views on the subject.

Answer: The commercial lot owner is welcome to have his staff park in his own car space(s) but not visitor parking.

In our view you are correct irrespective of the Strata Committee’s stance that they may park there because they pay strata levies.

The commercial lot owner is welcome to have his staff park in his own car space(s) but not visitor parking, in our view, because his staff are not bona fide visitors – they are the employees of his business.

The Oxford Dictionary defines visitor as “A person visiting someone or somewhere, especially socially or as a tourist”. It is difficult to see how an employee of a business within a strata scheme could be construed as a bona fide “visitor” to it.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #292.

Question: We have a general by-law stating residents must not park on common property without written approval. Is this sufficient or should we specifically refer to visitor parking spaces?

We have a visitor parking space area which combines both spots for individual resident parking and visitor parking. We also have another building that has enclosed individual garages. Many residents are using visitor parking to park their second car or because they keep household goods in their garages. For many years there have been no restrictions to parking in the visitor car areas. Now we want to introduce a parking By-law that defines the terms of parking in the visitor. car park, including appropriate signage.

We have a general By-law that states residents must not park or stand their motor vehicle on common property without the written approval of the Owners Corporation. Is this by-law sufficient or does it need to be amended to specifically refer to the visitor parking spaces and the terms of parking rules & signage?

Answer: A very specific visitor parking by-law should be drafted by a strata lawyer.

Technically, this by-law is adequate because visitor car parking is common property. However, abuse of visitor parking is common and therefore, to highlight that visitor parking is for bona fide visitor parking only, a very specific visitor parking by-law should be drafted by a strata lawyer.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #228.

Question: I was fined for not parking in a visitor parking space at my girlfriend’s apartment. They are pursuing her for the money. Is this parking fine from the owners corporation valid?

I neglected to use a visitor parking space when I parked overnight at my girlfriend’s apartment. Although there are no lines or bays in the space, there are also no signs saying ‘No Parking’, there are only signs about picking up dog poop. This is in Chatswood NSW.

Strata placed a paper notice on the car stating I was fined $300. The fine was an administration fee for viewing the CCTV footage.

They are now pursuing my girlfriend for payment of the fine. They have stated that if the fine for not using a visitor parking space isn’t paid, they will block her Security pass to access her property.

I’ll be sure to only park in visitor parking spaces in the future, but I don’t want to pay for the fine. Is this parking fine from the owners corporation valid?

Answer: Only NCAT has jurisdiction to issue “fines” or “penalties” in this context. Therefore, it is highly unlikely this fine could be enforced.

Only NCAT has jurisdiction to issue “fines” or “penalties” in this context. Therefore, it is highly unlikely this fine could be enforced. However, the “fine” might be disguised as an “administration fee” under the by-laws applicable to the scheme – so you will need to review the by-laws on this aspect.

We cannot see any legal justification for de-activation of the security pass, so your girlfriend should ask on what legal basis they feel entitled to deny her access to her property.

Further, there was a recent NCAT case which stated that such a “parking administration fee” was unlawful. Details of this case can be seen here: Enforcing By-laws: Can the Owners Corporation Impose a Fine or Penalty?

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #224.

Question: A lot owner has a very regular visitor who has been given a security pass to our garage and his car is regularly in our single strata visitor car parking spot. He has become quite territorial about the space. How do we handle this?

Strata visitor car parking angst, a common source of resident disquiet!

One of our lot owner’s has a regular visitor who more often than not stays overnight.

As a consequent, the visitor has been given a security pass to our common property basement garage and his car is regularly in our townhouse complex’s single visitor parking spot.

Over many months this particular visitor has assumed virtual ownership of the visitor parking, and now even challenges other bonafide visitors to explain what they are doing occupying the place where he likes to park!

His rude and arrogant stance has upset a number of residents, plus he has responded aggressively to any lot owner who has questioned his right to extended stays in our visitor-parking bay (regularly as long as three consecutive days and two nights).

What adds insult to injury is that the lot owner he is visiting has a double garage on title and only occupies half of it with her single small hatchback. There is adequate unused parking accommodation within the unit owner’s own garaging.

What can our owners corporation do to persuade the lot owner (who shares a similar disposition to her unpleasant visitor), to make her vacant garage space available to her regular visitor, and to encourage her visitor to relinquish his erroneous hold on our strata visitor car parking bay?

Answer: The owners corporation’s strategy should be to enter into a parking agreement with local council to enforce parking restrictions at the scheme.

While this is not a quick fix for your issue, the owners corporation’s strategy should be to enter into a parking agreement with local council to enforce parking restrictions at the scheme. The agreement must be approved by special resolution of the owners corporation and Council erects signage and patrols the common property to ensure compliance. Council charges for this service and may issue fines of $550 for parking infringements.

NSW Office of Local Government has a useful factsheet for strata parking agreements.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #220.

Question: Some residents in our building use the visitor parking spaces as an additional parking spot. Is it possible to increase levies for these few residents and not all lot owners?

My inquiry is in relation to a small-sized strata plan in NSW with most lots being owner-occupied.

There are 5 visitor parking spaces on common property which is mostly occupied by the residents – both owners (who are also strata committee members) & tenants.

One owner (a strata committee members) feels this isn’t right as their visitors and other residents do not get to use the visitor parking spaces as, by the time they are home from work, all visitor spots are taken by other residents.

Please note that all lots have their own individual parking, but due to having multiple vehicles they utilise visitor parking spaces if empty.

The concerned owner has complained to our Strata manager and put a proposal to the strata committee. Regarding the proposal, most members responded that they would rather use the visitor parking spaces to park their vehicles inside their building at night after work, rather than park on the street and leave the visitor parking spaces empty as, during weekdays, visitors to the building are minimal.

However, this one owner feels that in doing so they are being unfair to other residents and their visitors. They recommend an increase in levies for those residents who want to use the visitor parking spaces.

As levies are paid according to unit entitlements, is it possible to increase levies for a few and not all? This owner keeps insisting that it is not fair that they all are paying the same levies and other residents get to use common property more. They recommend that they pay less levies compared to others or they pay some sort of parking fee for using visitor parking spaces.

Most committee members are against this idea of a parking fee and would also prefer not to pass a by-law for ‘exclusive use’ of visitor parking spaces as the spots are being used as and when available by all residents.

Please advise if such an arrangement can be made where those residents who frequently use visitor parking spaces pay some additional amount to their strata levy.

Answer: First you need to ascertain from the development consent for the building exactly how many visitor parking spaces are required by law.

Before answering the question on whether such an arrangement would be legal, you would need to ascertain from the development consent for the building (available from Council) exactly how many visitor parking spaces are required by law.

Visitor car parks are to be used for bona fide purposes, therefore, charging residents for a contrary use would not be recommended.

The scheme could, however, apply to modify the council conditions and, subject to consent, convert some of the spaces to common property parking spaces and then licence, lease or otherwise charge fees for use (or give exclusive use which they are resisting) (rather than increasing levies).

Subject to council consent, you could also apply to convert them to individual lot property and sell off any extra spaces for valuable consideration (to be paid to the owners corporation). This will require a subdivision of the strata plan.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #205.

Question: One of our residents has a very regular visitor who is there most weeknights and sometimes all weekend. When policing strata visitor car parking, when does a regular visitor become a resident?

When policing strata visitor car parking, at what point does a regular visitor become a de facto resident?

One of our lot holder’s has a regular visitor who stays overnight at least 4 nights each and every week at our small Sydney strata complex. As a visitor, their car regularly occupies one of our two visitor parking spots overnight, and often all day and night at weekends.

Many residents believe that their continued use of our limited strata visitor car parking facilities is not in the spirit of fair access to common property. How long can a visitor stay in visitor parking?

In addition, this “non-resident visitor” has been furnished with a remote access (RF) key to our buildings secure underground car parking area (common property), a privilege considered by many as only for lot owners. On occasion, the lot owner being visited leaves the property accompanied by his or her visitor in the lot owner’s vehicle, leaving our visitor parking occupied by someone who is not even in the building, allowing their allotted garage space to sit empty.

Are there any legitimate grounds for the owners corporation to serve notice to limit the amount of parking time that any one lot owner can allocate to an individual visitor? Is this a matter best addressed in the by-laws?

Answer: The best manner in which to control use of the strata visitor car parking spaces is via a carefully drafted by-law.

While there is no hard and fast rule for when visitors become residents, matters to be considered are:

• Whether or not the visitor maintains a lease elsewhere (irrespective of frequency of “visits” to your scheme);
• Whether the visitor pays or contributes to rent
• Whether personal effects/furniture/pets have also moved in
• Whether mail is directed to your scheme

As you correctly point out, the best manner in which to control use of the strata visitor car parking spaces is via a carefully drafted by-law, which could impose restrictions on the number of hours of continuous or aggregated permissible parking eg no more than seven (7) hours at a time and not overnight for more than one (1) night without the written authorisation of the strata committee (just an example) and that it is for bona fide visitors only (to be determined in the Owners Corporation’s sole discretion). The Owners Corporation could keep a register of breaches, monitor and record use of the visitor spaces.

A popular alternative is the installation of a lockable bollard on the visitor car spaces which is managed by the on-site manager or member of the strata committee who is resident at the scheme. Under the new legislation, care should be taken to ensure the by-law is not harsh, unconscionable or oppressive.

Section 125 of the new legislation deals with removal of motor vehicles which, among other things, obstruct the use of the common property (as in your common property visitor car space), however, the vehicle needs to be parked there for 5 days before removal action can be taken.

We have encountered by-laws which threaten to wheel clamp and tow offending motor vehicles, however, we have not yet seen these tested in the Courts. We have also seen Owners Corporations which charge a fee for use of visitor car spaces.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #185.

Question: Is it possible for the owners corporation to lease out additional visitor parking spaces to a retail lot owner and if so, what would be the process?

We manage a building of 80 odd lots, made up of mostly residential with a very small number of retail units.

Is it possible for the owners corporation to lease out additional visitor parking spaces to a retail lot owner who has made this request and if so what would the process be to do this?

The owners corporation are under the impression that they cannot acquire a profit for the scheme and that the retail owner is restricted to approaching lot owners individually regarding a personal arrangement to lease from them. Clarification on this matter would be much appreciated.

Answer: While the Owners Corporation has the power to lease out common property by special resolution, the fact that the area in question is a “Visitor car park” complicates matters.

While the Owners Corporation has the power to lease out common property by special resolution, the fact that the area in question is a “Visitor car park” complicates matters as the visitor car parks must be used for that bona fide purpose. If you lease it to the retail lot owner, that prevents bona fide other visitors to the scheme from parking there.

What you can do is review the development consent for the building. In our experience, sometimes a building has more visitor parking spaces than council stipulates as being required. In that case, the Owners Corporation could sell (by way of a strata plan of subdivision and transfer) or lease the “additional” car space for valuable consideration.

In other words, the development consent will determine how many visitor car spaces must be reserved for this purpose.

There is no restriction on the Owners Corporation to sell, lease, licence, grant exclusive use of common property for profit provided the Owners Corporation adheres to the processes outlined in the strata legislation. You will require a range of motions to be passed by special and ordinary resolution, forms will need to be executed, agreements etc drafted by a specialist strata lawyer. So, if the Owners Corporation has an extra car space, it is at liberty to profit from it.

As for leasing from an individual lot owner, this is acceptable too.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #159.

Question: Can access to the visitor parking spaces be restricted for my guests?

I purchased a unit in Western Sydney and have been experiencing issues with the Strata Manager who is also a substantial unit owner of the building.

My unit is not allocated a car space. My main issue with this is the Strata Manager is restricting my access to the guest parking. He advises me there is currently a procedure being put in place to allow me guest access. He is of the opinion I will let my guests park in the unit owners allocated spaces if the guest parking is full.

I am uncertain as to what to do because the “procedure” he is putting in place will likely take an extended amount of time.

Answer: The visitor parking spaces should be accessible by all genuine visitors.

The visitor parking spaces should be accessible to all genuine visitors.

If the current manager, in conjunction with the Owners Corporation, is considering implementing a process for access or use of the visitor parking spaces, it must ensure that any agreed procedure is in keeping with the strata bylaws and development consent applicable to the scheme.

It is difficult to comment any further without knowing what the proposed process is and to advise if the proposed process conflicts with the legislation in general and or the DA and strata bylaws.

We would suggest as a step to resolve the issue that you request your guests have access to the visitor parking spaces as required under the DA.

Any issues or concerns that the manager has with regards to you allowing your guests to park in the allocated spaces should be dealt with as set out under the legalisation, i.e. enforcement of by law compliance.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #101.

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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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