TOWING OF CARS IN STRATA
December 14, 2023
Under the new laws, a body corporate wanting to tow a car will no longer require an order from the Commissioner’s Office before they tow. But the devil is in the detail.
Find out what’s new regarding parking and towing in strata schemes, and how to ensure you don’t get caught out doing the wrong thing. Our update includes:
The towing of cars in strata has been an issue for decades because there is no self-help remedy in relation to by-law enforcement.
Out with the old: Commissioner’s Office order
To enforce a by-law, which is what you’re doing when you are trying to tow a car, you traditionally need to go through the Commissioner’s Office to get an order to allow you to do that.
When someone breaches the by-laws, you can’t simply drag them out of the pool because they’re in there at 8pm. Or if someone has a pet that’s not approved, you can’t get the master key and grab it, put it in a cage, and take it to the RSPCA.
You need an order from the Commissioner’s Office.
The reality is that orders of this nature will take somewhere around a year to obtain. It’s not practical to do that when you want to remove a car that shouldn’t be in a visitor parking space.
It’s all in the fine print: New strata laws regarding towing
Under the new laws, a body corporate wanting to tow a car will no longer require an order from the Commissioner’s Office before they tow. But the interesting thing in this issue is the fine print.
When legislation is created, we have the Act and we also have the reading speech. The reading speech contains some of the explanations as to why the government has done what it has done.
Those statements are not binding on their own, but they are very relevant when anyone is looking at the interpretation of the Act.
With the towing of cars, the change to the legislation is only very simple. But the reading speech has the fine print, and the reading speech says that bodies corporate still must be reasonable when they’re exercising their rights to tow a car.
What does acting reasonably mean in these circumstances? It is absolutely making sure that the person who is about to get towed knows that that’s going to be a consequence of them staying in that parking space.
Time will tell: Acting reasonably under the new laws
If a person parked in a visitor car parking space and they came back and the car had been towed, and the body corporate hadn’t made any attempt to contact them, (without this being legal advice) that is almost certainly going to be unreasonable.
However, if the body corporate had told them 15 times over the previous six months in writing and on text message and via e-mail and face-to-face, that if they keep doing that, then they’re going to be towed, then maybe it probably is going to be reasonable to tow without notice when they park there for the 16th time.
But again, as always in the Commissioner’s Office, what’s just and equitable and/or reasonable in each individual circumstance depends on those circumstances.
What you can do
As much as bodies corporate are going to have the right to tow cars, you’ve got to be very careful to make sure there is no argument that they haven’t acted reasonably in doing so.
New laws change the strata game, and many existing by-laws will now be out-of-date.
Hynes Legal offers a free review of your by-laws to ensure they are relevant and enforceable. Following this free assessment, we will provide you with a proposal to make recommended updates that align with the new body corporate laws. Simply CLICK HERE to fill out the form at the bottom of the page to get started.
And if you need help, just reach out.
Article Contributed by Frank Higginson, Partner, Hynes Legal