common property

What is the case about?

The Tribunal sets out the facts as follows:

The applicant, Mr Lim, is the owner of one of two units (‘Unit 1’) on a property situated in the suburb of Glen Waverley. Unit 1 is the front unit of the property and it is the first unit facing the only accessible street from the property. The rear of the property is enclosed by a boundary fence. The respondent, Mr Cahill, is the occupant of the second unit (‘Unit 2’) on the property. Both units have a separate garage attached to each unit. The area outside of Units 1 and 2 are common property, including the one and only common driveway out of the property, which runs onto the street.

Mr Lim alleges that Mr Cahill and his visitors park their cars on the common property driveway, such that Mr Lim and his family are unable to properly drive their cars out of the property. Mr Lim alleges that Mr Cahill has contravened the Model Rules 4.1(1), 4.2(b) and 4.2(c) of the Owners Corporations Act 2006 (Vic) (‘OC Act’). Mr Lim seeks an order that Mr Cahill stop parking his car on common property, and for him to stop his visitors from doing so.

Mr Cahill says the cars parked do not impact Mr Lims use of common property.

Mr Cahill parks (and allows visitors to park) out front of his garage in common property. Mr Lim is able to drive out but the ability to do a three point turn to be able to drive out forwards is sometimes not possible.

What do the model rules say?

Model rule 4.1(1) provides:

(1) An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.

Model rule 4.2 provides:

An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle—

(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or

(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or

(c) in any place other than a parking area situated on common property specified for that purpose by the Owners Corporation.

What did the Tribunal find?

The Model Rules do not permit a person to park their vehicles on common property simply based on convenience.

The Tribunal found: “Considering the operation of Model Rules 4.2(c) to this case, unless the common property has been designated as a car parking area by the OC, it is clear that it ought not  be used as a personal car park space by Mr Cahill. It does not matter whether or not his vehicle was parked close to his garage. Whether he parked his vehicle at the end, the middle or anywhere else along the common property, which for the majority of the area is an elongated common driveway, Model Rule 4.2(c) does not permit Mr Cahill to use and occupy any of the common area as his private parking space. There is no evidence that the common area in front of Mr Cahill’s garage was intended to be for the exclusive use and occupation of Mr Cahill. It follows that ‘common property no.1’ is for the use and enjoyment of all lot owners and occupiers.”

The Tribunal found that it was a breach of both model rules.

Model Rule 4.2 takes precedence over the general operation of Model Rule 4.1(1). Otherwise, an owner or occupier could park anywhere on common property that person pleases, regardless of whether or not the area was designated for parking, and regardless of whether or not there was an emergency, provided that the area was not used by anyone else. It would effectively render parts of Model Rule 4.2, in particular Rule 4.2(c), nugatory. Module Rule 4.2 is an exception to Model Rule 4.1(1).

Rules do not prohibit situations where one may need to temporarily park one’s vehicle or allow a visitor to do so on the common driveway under certain circumstances.

Lessons to be learned?

You cannot park on common property except in relation to the limited situations allowed under the rules, even if it is in front of your own garage.

The problem is to enforce the rules you need to make an application to VCAT which can take time. In Lim, the parties were self represented. Had lawyers been involved Mr Cahill might have been subject to a significant costs order as a penalty for his transgressions.

Need Advice or assistance?

Phillip Leaman, Principal of the Owners Corporations practice group of Tisher Liner FC Law and his very experienced team can provide assistance to Owners Corporations, committees, lot owners and managers in a range of Owners Corporations legal matters.

We believe Owners Corporations want to maintain peaceful, functional living environments for owners. Our mission is to provide a fresh perspective on resolving legal disputes and to inspire Owners Corporations to achieve outcomes that preserves the value of assets and restores harmony. We are expert Owners Corporations lawyers.

For advice or assistance, please contact Owners Corporations lawyer Phillip Leaman.

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.