Clamping - how it can be done legally | Parking Peeves | Flat Chat ForumA A A
G makes perfect sense and it does clarify the intent of the 'with consent' clause.
I am disappointed, however, that Fair Trading didn't come along with something a bit more positive than 'you're wrong – don't do it'.
If they were as hardline on people who park illegally, we wouldn't need to stretch the laws to fit our circumstances.
In any case, I still favour Beverley Hoskinson-Green's view that if the law simply says, "with consent" and the Owners Corp genuinely feels they have been given consent by the acceptance of a by-law, then to Hell with the reason the phrase was put in there. Let us clamp and be damned.
The fact that G's employer knowingly breaks the law but does so as an effective deterrent, is no different from an owner's corporation bending the rules with informal arrangements that benefit the majority of by-law abiding owners.
We have no interest in immobilising wrongly parked cars – but we do want the drivers to think hard befor they park where they shouldn't.
Scotlandx, This isn't to do with bylaws affecting new owners, I think this has much more to do with bylaws not being able to overrule state law.
There was a time when wheelclamping on private property was common. Property owners would put up a sign, or have some other mechanism of implied consent allowing them to put clamps on. There were all sorts of problems with difficulties in getting the clamps removed, with extortionate fees being demanded and unreasonable delays. This resulted in numerous complaints, some resulting in violence and other escalation, and many episodes of trashy current affairs shows were dedicated to the issue. Eventually the government legislated against these practices (in 1998 for NSW, I think).
My understanding is that the reference to "with consent" was included to allow people to use wheel clamps to secure their own vehicles against theft (eg, caravans, boat trailers, etc).
It doesn't surprise me that you have this response from Fair Trading when trying to interpret "with consent" in order to do precisely what the law was designed to prevent.
Obviously nobody is questioning that they shouldn't be parking there. The issue here is that State law essentially prohibits using wheel clamping as a punishment and a strata bylaw is unable to override it (one would assume that offenders would not consent to being punished).
Interestingly, my employer still uses wheel clamps. They justify it with a big sign at the entrances and only clamping after several warnings and only where they have no idea who the owner is. They also remove the clamps immediately when asked (24 hour on-site security, and the response is fast), and don't charge for this, so nobody has bothered making a complaint. However, with strata parking… You only have to get one person who is inconvenienced and/or vindictive and you will end up with a complaint, and I believe the fine is $300 for clamping plus a further $300 for not releasing it immediately without charge.
But then again, I'm not a lawyer so I could be completely wrong (although I won't be the one to test it).
I would like to say I can't believe it, but I can, that advice is just plain stupid. Following that logic, successors in title would never be bound by the by-laws of a strata scheme, unless they had specifically consented to them.
The whole point of by-laws is:
- in the case of a general by-law the majority rules, if the requisite number vote for it that is the by-law.
- by-laws bind successors in title.
Aside from that, general by-laws don't require the consent of each owner. It is exclusive use by-laws that require specific consent of the relevant lot owner, and in that case a successor in title is bound by that consent.
I was also puzzled by the advice given by Fair Trading re how to deal with rogue parkers. Why should the owners have to wear the cost of putting up gates and electronic scans etc., to deal with something that is illegal?
I had a few strong words with a representative of Fair Trading today. Their view is that the word "consent" has a very specific meaning in law and signing up to by-laws, even those that specifically give consent to clamp residents' illegally parked cars, doesn't get round the ban on clamping unless the owners concerned have consented to it.
Their view seems to be that only owners who voted for such a consenting by-law when it was first tabled can be bound by that by-law. At the risk of being accused of being 'bleeding obvious", am I right in thinking that rogue parkers are among those most likely to be in the "no" column in that vote?
In any case, if that's true then the whole basis of abiding by strata by-laws and collective decision-making is undermined.
Also, if this notion hasn't properly been tested in court then it's bloody well time it was.
They told me the reason for issuing the Press Release was to "help owners who may be confused". Really?
Why, of all things, stick your heads up and offer an opinion on parking that favours the miscreants when there are so many things that Fair Trading just keeps quiet about?
Who benefits from this? Those poor, misunderstood rogue parkers, that's who?
There is much more on this HERE.
I went to the Fair Trading press release, and didn't know whether to laugh or cry when I read Mr Stowe's observation that "when people who are neither residents nor visitors of residents park their cars within the boundaries of a strata scheme, the owners corporation can contact the local council or police who may then order the removal of the car." Can anyone cite an example of this having happened (other than when the car has been identified as reported stolen)? It seems our supposed justice system is intent on protecting offenders from their victims.
Yes, I am disputing this with them because they are saying that since the concept of implied permission hasn't been tested in court, then it is not legal. My argument is that implied consent in by-laws is fundamental to the running of strata and the fact that something hasn't been tested in court has no bearing on whether or not it's legal UNTIL it's tested in court.
Somebody's been reading our posts, because this Media Release was issued yesterday by the NSW Office of Fair Trading.
You can't fine anyone anyway, so that's not even an issue. If someone is persistently parking in a visitor's spot, you can, for instance, very cheaply train a security camera on the spot. Or you can put a notice on the car saying you believe it has been abandoned and you are about to tow it on to the street where the council will have to deal with it unless they phone your building and/or strata manager and explain where they are staying in the building.
If it's an outsider, you can put a notice on the car explaining that they aren't covered by insurance as they are trespassing and any damage to their car, accidental or deliberate, may not be covered even by their own insurers.
There's more than one way to skin this cat – all it takes is a little lateral thinking.
So how exactly are you supposed to find out whose visitor it really is? Camp out in front of the visitor's car and not let them drive it away until they've told you who they're visiting (and hope they tell the truth)?
And who are you supposed to fine for rogue parkers who aren't visitors, such as afore-mentioned commuters etc.?
How would this, say, apply to visitors parking illegally in a carpark (e.g. overstaying)? Since they aren't owners or renters, are they then subject to the same by-laws? (i.e., is their permission given if we have a sign up?)
The short answer is No. They haven't given permission, regardless of the sign, so you clamp at your peril. However, the residents whom they are visiting have a duty to control the behaviour of their visitors so you could send a Notice To Comply to the residents, telling them to stop their visitors parking illegally (subject to whatever by-law you have in place) or they may be fined up to $550. Funnily enough, this applies to all their visitors, not just the ones at any particular time so in some ways it has a furtther reaching effect that a clamp on one car.
Something must have been lost in translation. I hope I didn't sound as if I was saying that – but I do recall saying that some people believe that to be the case.
There is a theory that glueing a sticker to a car so firmly that it takes ages to clean off is "malicious damage" under the law but I have yet to hear of anyone being charged with it. Who would the police arrest? The entire EC? Would the rogue parker sue? It would be cheaper for them to buy another parking spot.
Even if that technically is the case, I think we tend to get caught up in legal possibilities rather than logical probabilities. And if I was ever arrested for putting a notice on a car parked in common property, I'd say I was trying to put it on the ground but the illegally parked car got in the way.
Hi All, JT,
Was listening to JT on 702 the other day re parking and what I heard was you cannot touch a persons car at all re illegal parking. So am I to think the stickers I downloaded from this site and used are illegal? Bugger if they are as they work a treat!
Anyway, let me know if I should be posting this to a different topic.
A company that I worked with some time ago had a simple solution to anyone that illegally used our well marked private car park. An A4 sheet of adhesive label stock with a polite notice telling them that they were parked illegally would be placed in the centre of the drivers side of the windscreen.
It was quite interesting watching them scraping it off before they could leave. Never came back though!!
Kiwipaul – our advice was that we couldn't issue fines, and that's why it's called a "parking fee" in our SBL – even though the invoice looks somewhat like a "bluey".
It may have been obvious, but the reason for the SBL permitting a $500 / day fee was simply to save us amending the prescribed amount as time progresses and the value of the dollar decreases; we use the "not exceeding" provisions to raise $25 / day fees which, as I said, have always been paid despite protests from a few bush lawyers.
I haven't posted our SBL as I couldn't find my original draft (docx) on my cloud-based hard-drive and the pdf version that I could find won't let me cut and paste (?). If you or others are interested, I'll try to work around the pdf and copy it here when I get time. Just let me know.
Kiwipaul – Unless clamping could be broadly covered under the definition of “distrain” (and I don’t believe it can) then the following, provided to me by a past Owner and of unknown origin, seems to comply with the advice so clearly provided by Beverley Hoskinson-Green of Makinson & d’Apice, but I suppose a clamping provision could be easily added by an O/C after appropriate legal advice:
“1 An Owner or Occupier of a lot must not park or stand any motor bike, boat, trailer, or any motor vehicle (“vehicle”) on common property except with the prior written approval of the Owners Corporation.
2 The Owners Corporation shall have the following powers and authorities, in addition to those conferred upon it by the Strata Schemes Management Act 1996 and the By-laws:-
a) The power to do one or more of the following in respect of a vehicle, the property of an owner or occupier of a Lot, parked upon Common Property contrary to the By-Laws;
(i) the power to remove the vehicle from the parcel;
(ii) the power to move the vehicle within the parcel;
(iii) the power to distrain the vehicle by such reasonable means as the Owners Corporation determines; and
(iv) the power to affix a sign to the vehicle.
b) the power to recover the costs of exercising any power pursuant to this by-law from that owner or occupier as a debt in any court of competent jurisdiction”.
We didn't adopt the above but opted instead for a Special By-Law (SBL) that, after a vehicle is found to be on Common Property or on a carspace other than the one allocated to the Lot being occupied by or visited by the vehicle's owner on three (3) occasions, and where a Notice has been placed on the vehicle on each of those occasions, permits the Owners Corporation to then issue a “parking fee not exceeding $500 per day or part thereof” to that vehicle's owner for payment, and in default to the legal occupant of the Lot where that vehicle's owner was an invitee.
Even with the detailed preamble to our SBL I know that there are a few loopholes, but thankfully our friendly postcard size “Notices” have mostly done the job, so our $25 Fees have been few and have always been paid by both tenants and and Owners.
At my place of employment, the staff car park has a sign which states that all unauthorized cars parked there will be towed at owners expense. Each employee has a numbered sticker on their car that is registered to that employee. The car park has spot checks for unauthorized cars. Employees who abuse the parking loose access to the carpark.
So if it cave done for a company on their private property, why not strata? Have a big sign at eqch parking area clearly explaining that their car will be towed and tht they will pay for that. Each resident gets a sticker for their car. They have to register the plate numbers, make and model. Those with one garage/car spot gets to register one car, get one sticker, no matter how many cars they have. An owner with two garages can register two cars if they have them. If they only own one car they can only have one sticker, to stop anyone handing out stickers to someone else such as a friend who needs parking for the day.
But then there is the matter of the by law. As I have said before, as the majority of residents abuse or use the visitors car spots in my complex so there would be no way to get a by law passed.
So a bylaw would address 90% of the problem as most offenders are residents of the complexes (I know their are exceptions).
But how to word the bylaw. Can someone who lives in a building with a towaway or wheel clamping bylaw post a copy of that particular bylaw (I don't mind which state it is from as it should apply the same anywhere) so we can see what it entalis.
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