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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?

Reply from: Stephanie

2:20pm Wednesday, 17 December 2008

Is anyone able to help with some advice regarding a similar matter?....

I own a lot of 9, we have an enclosed car park, the strata registry allocates a car park for each lot.... the owner of one of the lots has built a fence and extended their garden in their allocated car spot, are they allowed to do this without a planning permit and Owners Corp consultation? Are car park titles deemed as purely for their intended purpose, thus being to park their car or can development without consultation take place?

Many thanks,

Reply from: Leanne

1:42am Saturday, 30 April 2011

I live in a complex unit 8 and everyone has a park, great that our park is easy access but a neighbour in the complex who says he is part of the body corp strata managment, say's its easy for him to park there! while we are left without a park he now states it a visitor park? his park is empty and we suffer? Our front door is right in front of it... say about 12 to 14 feet door to park, we find it so hard to do shopping and getting in and out we have no privacy, our neighbour in Unit 7 next to us has no worries of this issue? is there anything we can do without breaking bylaws? Thank you for your time.

Reply from: Nick

8:21pm Tuesday, 03 May 2011

Check your title to find out if you have a car park included. If so - it's your park - that would be the first step.

Reply from: Leanne

5:40pm Thursday, 05 May 2011

Hi again, on the aproved plan to our unit it does state it is our car space, I've rang the realty and Strata TM but they are no help at all!
When Strata TM get a call from me about the space they call the person whom is causing the trouble U2 and being the bully in our complex.
This is because he claims his part of body corp!
who has recently bashed a few times on our door and tryed to get in, scary stuff! his made statements his to put up a sign saying our space is Visitors?
But this also means our neighbour 7 will suffer as well their park space is next to us? U9 park day and night in Visitors car space which effects all complex visitors and U2 who claims he is the Body corp he is very chummy with U9? so is it a no win situation? and to be bullied for the next few years we are here?
or is there somewhere higher we can go to resolve this? as Strata are no help! Thanks for your time!

Reply from: Jenny

10:37am Friday, 06 May 2011

I live in a set of units and each unit is allocated car spaces (1 or 2 carspaces depending on the unit purchased, as part of their title as an exclusive use area . Can an owner rent out a unit and not include the carspace then rent out the car space seperately. then if the tenant needs a space can that person be excluded from the designated carspace.

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