31 Oct But it’s my parking space
But it’s my parking space
A lot of owners fall into the trap of thinking that because they have been granted exclusive use of parking spaces, whether in a residential or commercial scheme, that they are permitted to utilise or change the parking space/s as they please.
Unfortunately, in most cases, this is not true.
It is important that when you, as a lot owner, have been granted exclusive use of car parking space/s (or even courtyard areas) that you read the Body Corporate By Laws thoroughly to ensure that you are 100% sure of the requirements that are part of being granted exclusive use of the space.
In this month’s adjudicators order a motion was passed at an Annual General Meeting granting approval to the Owner of Unit 1 to construct a commercial car wash within the exclusive use parking spaces that it had been granted. It was argued by the applicant of the adjudication application that the proposed construction and use of the parking spaces is contrary to the exclusive use by law, which states:
“…to be used for the purposes of car parking, storage, access and ancillary uses. In using these areas the owner of lot 1 shall be entitled to make any part of the said designated areas available for car parking to any party whatsoever with or without charge and may install any machinery by way of security systems and any other structures or works or plant and equipment to control the flow of traffic into and out of the area and to receive payment of fees for such use.”
The adjudicator invited all owners to make a submission about the matters raised in the application and received some 15 submissions in support of the application including one that had a petition signed by a further 37 owners. The reasons behind the opposition of the proposed car wash included agreement that it was contrary to the exclusive use by law, as a commercial car wash this would mean that a third party would run the car wash which is not permitted and various other misgivings were expressed such as potential impact on the flow of traffic and more importantly the effects of any structural alterations made to the common property.
The owner of Lot 1 argued that the car wash proposed fell under the definition of “ancillary uses”, particularly that the proposed car wash is ancillary to car parking because “it provides a service that supports and facilitates the commercial purposes of (the respondents lot and the exclusive use car park)… and it does not have any other extraneous purpose… The use is secondary to the use as a car park and clearly accessory to that use by adding a convenience and benefit of the users of the Commercial Car Park.”
The adjudicator felt that the Owner of Lot 1’s definition of “ancillary” was too broad and noted that there is nothing about washing cars that assists, facilitates or supports their parking and can park equally well unwashed.
As such, the Adjudicator ruled that the motion carried at the AGM held was at all times void.
So…….before you go making changes to your exclusive use parking space (or courtyard), make sure you are familiar with the bylaws and the legislation.
You can view the Adudicators Report.