We seem to be on a bit of a roll with these newsletters dealing with common by-law issues, so we will continue the theme.
We have written previously about bodies corporate acting reasonably when it comes to pets here and then went a bit further out on the limb here when we wrote more generally about oppressive and unreasonable by-laws. As a side note, you can now comment on our articles below. There were some rather interesting responses we had to that last linked article, some of which were unpublishable.
We don’t make the law. All we do is advise people on what the current legislation means. If you don’t like what the law is, then get involved in the review of the BCCM Act and have your say. Don’t shoot the messenger. The word on the street is that by-law enforcement will be a part of the next discussion paper issued under the Queensland government property law review, so you will have a chance to have a say then.
Can a body corporate tow a car?
Enforcement of by-laws is a committee issue.
There is no scope under the BCCM Act for anyone to solve an issue on their own terms. If a body corporate is going to enforce a by-law then its needs to follow the process set out in the BCCM Act – issue a contravention notice, get an adjudicator’s order and so on. This system can be somewhat toothless, but that is what we are stuck with.
Take the example of a building that has an enforceable pet by-law. A small dog approved under that by-law yaps constantly which is in breach of one of the conditions of the approval related to its occupation of the lot. The process to remove the dog is to withdraw the approval, and if the dog remains: go through the Commissioner’s Office and get an order to that effect for its removal. The process is not to get the master key, go into the lot when the resident isn’t there, grab the dog by the scruff of the neck and throw it off the balcony (or take it the pound if you are so inclined).
Another example that is less theoretical (as in this actually happened) was where a contractor was carrying out work on a lot. They were parked across the lot’s driveway in breach of the by-laws. The chairperson strolled by and noticed that the keys were still in the van and then took the rather robust approach of moving the van himself to where it should be parked so it was not in breach of the by-laws. Not an approach we would usually recommend!
Towing a car is no different. We first covered this in 2009 here. The distinction everyone has to remember is that a car parked on common property is going to fall into one of three categories. It will belong to either:-
- An owner or occupier; or
- A guest or invitee (someone parking in visitor car parking with an owner or occupiers invitation); or
- A third party with no connection at all with the scheme.
If it is a third party then a body corporate may be able to tow it, depending on what signage has been displayed. This situation is no different to you parking on my driveway without my consent. In effect it is a form of trespass.
The difficulty is knowing who it belongs to.
If it is a guest / invitee in visitor car parking – leave the car be. Adjudicators have rarely taken a liking to restrictions on the amount of a time a visitor car park can be used. Whether it is a friend popping over for a quick two hour lunch or a cousin staying in your guest room for a week over the summer; they are both visitors and the visitor car parking is there to accommodate them.
If it is an owner or occupier, then the only way to tow it away is by an adjudicator’s order. Put up as many warning signs threatening immediate towing as you like – if you want to enforce by-laws then there is a process to follow.
If a car is parked in an exclusive use space belonging to another owner then that owner may have rights. However, if the body corporate is to enforce them, then the same process will apply.
Yes – the law on this point is frustrating and, to a large extent, toothless. Some changes being explored across the industry (which will no doubt be part of the discussion paper) are:
- Allowing council inspectors to issue fines for illegally parked cars in schemes.
- Empowering adjudicators or even giving a body corporate the right to issue fines for by-law contraventions.
- Giving bodies corporate an express power to tow illegally parked cars.
Would those changes create more problems than they solve? Time will tell.