Common Property Parking

There is now an updated summary of this topic compiled in preparation for the next general meeting ... click  here 

Issue about use of common property and parking

Of course I acknowledge here, that this my perceived interpretation of all the research I have done into this subject.

En and I only have one car and two car ports in front of unit. So the decisions regarding parking on common property or not does not greatly affect us, however, I as always, like to get to the truth of the matter. It would be natural for me  to want to understand the correct legislation and regulations governing common property and then adapt  my own common sense approach where possible.

 

Over the last 3 years we have had 7 different body corporate managers Castle is now the 8th. The managers have all had different levels of understanding of legislation that govern the body corporate. Whilst I believe Castle to have a better understanding than most we have dealt with, we are still getting to know him. Hopefully we will in time develop a certain level of mutual trust , I must admit that at this early stage, I am still reluctant just to accept his interpretation without question.

Regards common property we have been told that we can not park on the common property. I think I am correct in saying,  the reasoning for this is, that one can not have exclusive use over a section of the common property. And that , apart from occasionally , unloading or loading,  vehicles should not be parked on the common property.

The argument being that if I am parked on common property I am excluding someone else from doing the same.

 

However having reviewed the legislation, I don’t believe the above interpretation to be in accord with the provisions of the Act.

Nor do I believe that NTCAT  would necessarily up uphold that reasoning either.

[1] First let me explain why :

[2]and then we will review a very recent NTCAT finding of a case that has relevance within  sections 11 to 14;

      You can read the entire NTCAT case via this link

[3] And finally review what the Unit Titles Scheme Supervisor and solicitor for Policy Coordination has to say about it.

     You can read the full response  of my request for assistance via this link

 

Applicable legislation:

The Unit Titles Act 1975,

 The Articles of corporation : The default articles apply as they have not to this date been altered.

Relevant sections of the Act:    

UTA Article 4(a)

A member of the corporation shall not:

(a) subject to sections 42B and 44, use the common property or permit it to be used so as unreasonably to interfere with the use and enjoyment of the common property by another member of the corporation, by the occupier or user of another unit or by an invitee or licensee of such a member or person;

Sections 42B and 44 are references to those sections of the UTA which provide that the common property can be leased or provided by way of special privilege to a unit holder.

 

UTA sec 30 Legal Status of corporation

Clause 30 (2) A corporation has the powers, authorities, duties and functions conferred or imposed on it by or under this Act and, subject to this Act, has the control, management and administration of the common property

 

UTA sec 34 General duties

A corporation shall, subject to this Act and the Regulations

: (a) be responsible for the enforcement of its articles and the control, management and administration of the common property;

 

UTA: Sec 24 Common property to be held in trust

(1) Subject to section 42B, the corporation shall hold the common property in trust for the persons who are for the time being the members of the corporation as tenants in common in undivided shares proportional to the unit entitlements of their respective units, and, subject to Part IVB, shall afford those persons opportunity for the reasonable use and enjoyment of the common property.

 

 

Discussion:

 

UTA sec 24 above “shall afford those persons opportunity for the reasonable use and enjoyment of the common property” .  

Would imply that the common property can be used and enjoyed.

 

How is it to be used:

 UTA Sec 30(2) and Sec 34 above would imply It’s the legal duty of the corporation to control use of the common property by administering management. And thus up to the body corporate to decide how within the frame work of the legislation the common property can be used.

 

UTA Sec4(a) Would suggest that the common property could be enjoyed as long as one did not unreasonable interfere with the use and enjoyment of others.  And here the operative focus is on ' not to unreasonable interfere'.

 

Keeping above in mind, I would argue that since the common property driveway area is 500 square meters. If someone was parked adjacent to a unit and not blocking another’s access in or out , that using 3 square meters of a possible 500 would not reasonably constitute “unreasonably interfering “ with another’s use of the common property.

If someone parks a vehicle in front of unit 1’s carport on common property, common sense would dictate that it does not in any way unreasonably interfere with another's use or enjoyment of the common property.

 

In relation to the reasoning that parking on the common property constituted exclusive use.  Unless a vehicle is some how permanently parked and does not move or is only ever used by one owner it is arguable that it could be considered exclusive use.

 

NTCAT

Decision reference [2021] NTCAT 46 

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And further the NTCAT tribunal member stated in his findings that:

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If you read the NTCAT decision reference [2021] NTCAT 46 . You will see that, common sense , historical use and a lack of a recorded history of complaints by other owners play a part in the decision ruling.

 

In our case its significant that for the past 21 years people have parked on the common property adjacent to units. There is no previous history official complaints of unreasonable interference. I believe we have had incidences were people have blocked unit 7 and unit 4 access to their carports, this has more often than not been, when new tenants move in. Once the new tenants have been made aware, common courtesy and common sense has prevailed.

Unit Titles Schemes Supervisor response:
 

What does the Unit Titles Schemes Supervisor and solicitor for the Policy Division say in response to  my application for assistance in this matter.

 

I think, fairly similar to my own interpretation of the implications within the provisions, in so much as he suggests that the body corporate can manage the use of common property..  See extracts below.

 

His first response is:

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Answer to that is No.     At this stage there is nor prohibition of owners and tenants parking on the common area.

Think point here is,  Body Corporate who are responsible for the management of how the common property is utilised, has not thus far made any rulings against vehicles parking on the common area.

Again coming back to the fact that the body corporate can put in place its own policies concerning the use of common property.

 

However, the Schemes Supervisor,  made it clear that excessive personal use of  a section of the common property by one owner would be considered interference. 

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After reviewing the discussion of  NTCAT Decision reference [2021] NTCAT 46 .( sec 11-14)

I would suggest that wether that interference was considered unreasonable interference or not would depend on evidence that supported a claim that such a use of the common property prevented or injured others from using the common property.

The Way Forward

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As the Unit Titles Schemes Supervisor suggests. The way forward would be for the body corporate to perform its legal duty to control manage and administer the common property by implementing some general policies concerning the use of common property

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It would seem that body corporate need to make a decision as to:

    • wether it wants to allow parking on common property or not

    • Is there enough room

    • and if so under what conditions. ( 1st being ..must not under any circumstance interfere with access to car ports)

    • Do some area need to be designated as “ no parking at any time” areas.

 

If some areas are to be considered as suitable for temporary parking.

    • What time period would be considered temporary ?

    • Would those areas be accessible to all owners and visitors ?

The information contained within this document needs to be made available to all body corporate members for consideration.

Then the body corporate at a general meeting should via the appropriate resolutions answer the above questions and in so doing create a management plan for control and administration of the 'court yard ' area of the common property.

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