Q&A: Use of a driveway on common property with 2 units in a duplex

Question: The advice I need concerns use of a driveway on common property.

1. Two properties in a duplex, a very informal “strata” – never had a meeting, no minutes etc
2. A driveway is on ‘common property’ leading to a garage that belongs to unit 2.
3. An historical understanding that the driveway is common, and thus owners of both properties have used it to park their car. This has required a simple ‘knock on the door’ if the other owner is ‘parked in’. 25 years, never been a problem.
4. Last year owner of unit 2 rents their property and gives an assurance (without discussion with us in unit one), that the tenant can use the garage and that they have exclusive rights over the use of the driveway.
5. Tenant insists we cannot use the driveway for any purpose ever.
6. I have told the owner of unit 2 that they have given their tenant a false understanding of the arrangement and to please speak with the tenant about the historical understanding.

We do not want to cause problems, we simply want the freedom to park our car on common property as both owners have always done. We are not “blocking access” to the driveway as we never park there unless the tenant is already in the garage, and we never leave our car overnight so that the tenant has the freedom to leave when they want in the morning without feeling they need to knock.

My understanding on strata law is that you can park on common property if the strata agrees that is the case. This has certainly been an historical agreement, although as I say we have never had a meeting to enshrine it as a “by law”.

Some advice would be helpful.

Answer: Most strata schemes have a by-law to the effect that:

2 Vehicles

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation.

So, yes, you would need the written approval of the Owners Corporation, or, to more permanently and clearly protect your rights, you should obtain an “exclusive use by-law” to enable you to park on a designated area of common property, or, if there is no room on the driveway without obstructing clear access to the garage, you could obtain a licence to use and park on the driveway on the proviso you do not obstruct access for the other occupants and enshrine the current and considerate practice you have observed to date.

Hope the above is of assistance.

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Please note that this article is provided for information purposes only and is not a substitute for professional legal advice.