Car Parking - Management Rights Complex

Published: 17 January 2008.

By Frank Higginson of Hynes Lawyers

One type of problem arises where owners have been parking their cars in accordance with numbers which are painted on a wall and/or floor, and have done so for many years, and then someone challenges their rights to park there.
The general rules are as follows:

If the car space is noted on title as belonging to an owner then there cannot be any dispute regarding its use. This will be self evident from the registered strata plan;

If the car space is the subject of an exclusive use grant then the Community Management Statement (‘CMS’) which records the grant will govern the situation. Again, the space can be confirmed by reference to the plan annexed to the CMS if there is doubt;

The commissioner will usually not alter exclusive use allocations in accordance with actual use if there is a CMS that provides differently; and

Where there has been no exclusive use allocation, but owners have for years used certain car spaces in accordance with painted numbers, the commissioner is likely to order that there be exclusive use granted for the spaces in accordance with their actual use.

A problem also arises where an owner is allocated an exclusive use car space but has for years occupied some unallocated common property adjacent to the car space, either as a second car space or as storage space. Again, the usual result is that the owner will be restricted in their use to the actual grant of the exclusive use, and have to cease using the adjacent area. The situation with car parking is therefore fundamentally different from other situations within bodies corporate where a by-law is breached, such as by the keeping of a pet or an unauthorised alteration, which the continuation of the breach is nearly always permitted due to a deemed consent from the body corporate. The difference is due to the contravention being within a unit for pets and alterations, as opposed to a contravention which involves common property.
The message to owners is that you need to check that your car space is either recorded on title or that you have been granted an exclusive use, failing which you will need to seek advice on retaining your rights

Reply from: Jeff Wilson

10:50pm Tuesday, 19 February 2008

We have just instituted a system of parking permits for visitors and a letter from the body corporate has asked that all parking bollards be removed from designated carparks. This is part of an agreement with local council.

Does the body corporate have the right to demand removal of these bollards when a parking space appears on the title?