Can parking offenders be towed from common property?

Parking Sign StrataIn NSW the Owners Corporation now has the power to tow vehicles

Under the new NSW strata legislation, the Owners Corporation has finally received new powers to tow vehicles in breach of by-laws. On the downside, the Owners Corporation must tolerate the offending vehicle for at least five days before it may take any action.

Upon service of a compliant “removal notice”, a car that blocks an exit or entrance or proper use of the common property may now lawfully be moved by the Owners Corporation and the Owners Corporation may make application to NCAT to recover its costs.

The vehicle may be moved to another less obstructive position on the common property or another lawful place off the common property. However, the car cannot legally be moved until the expiration of a period of at least five days in compliance with the removal notice.

The legal requirements for a removal notice are set out in Regulation 34 of the Strata Schemes Management Regulation, 2016 (NSW).

A NSW Owners Corporation enforcing a removal notice should exercise a high degree of care and caution when moving vehicles to avoid liability for any damage caused to an offending vehicle.

The new legislation also enables an Owners Corporation to enter into an agreement with local council in relation to a strata parking area if approved by special resolution. Then, local council would erect signage on the common property and would be empowered to issue parking infringement notices.

The offending person is guilty of an offence which carries a maximum penalty of 5 penalty units. A penalty unit varies from state to state, however, the monetary value of a penalty unit in New South Wales is set out in Section 17 of the Crimes (Sentencing Procedure) Act, 1999 (NSW) and equates to $110 per unit, therefore, the parking fine could be up to $550!

Breach of a by-law and penalties

Residents in breach of any by-law risk that the Owners Corporation makes an application to NCAT for the imposition of a civil penalty for breaching the by-law. Such penalties are quite severe. This penalty carries a monetary penalty of up to 10 penalty units (which is $1,100). A repeat offender (ie one who was fined $1,100 and breached the by-law again within 12 months of being fined) can be fined $2,200.

Any owner who is in breach of the occupancy limits set out in the legislation are potentially liable to fines of $5,500 and $11,000.

In the event that an owner breaches a NCAT Order to, for example, stop smoke drift, or remove an animal, Section 72 (3) of the Civil and Administrative Tribunal Act 2013 provides for a civil penalty. These penalties have increased to up to $11,000 for an individual and $22,000 for a corporation.

Restrictions on by-laws

The new strata legislation has enacted a new restriction on by-laws, namely, that a by-law cannot be unjust, harsh, unconscionable or oppressive. Whether or not a by-law falls afoul of these restrictions is determined by NCAT. Further, any such by-law may be invalidated by NCAT.

 

Please note: This article covers legislation as per the Strata Schemes Management Act, 2015 (NSW), which was introduced on 30 November 2016. Any pre-dating articles on this website covering similar topics might no longer accurately reflect current legislation.

This article is not intended to be comprehensive nor does it constitute legal advice. The article provided is general and for your information and interest only.