Let’s see, can you tow a car from visitor parking in Queensland? This article and Q&A about strata car parking in Queensland has been supplied by Frank Higginson and Chris Irons, Hynes Legal.
Table of Contents:
- ARTICLE: If a body corporate decides to tow a vehicle, they must act reasonably
- QUESTION: As building managers, we’ve been instructed by the committee to organise the towing of cars if they stay in visitor parking longer than 2 hrs. Can an owner of a towed vehicle take action against us?
- QUESTION: A resident or visitor has been parking in my allocated parking space. What can I do? Can we tow the car given that the car is parking in my space for more than 24hours?
- QUESTION: Our Body Corporate is constantly threatening to tow residents who park in designated visitor parking. Can they actually tow residents’ cars or is this just scare tactics?
- QUESTION: Can my body corporate put wheel clamps on a vehicle parked in visitor parking?
- QUESTION: Do the recent tow truck legislation changes alter whether the body corporate can tow a car from visitor and other strata car parking areas?
- QUESTION: How do you remove an abandoned car on your property? Can we tow the car?
Article: If a body corporate decides to tow a vehicle, they must act reasonably
This new legislation has taken a few steps in relation to towing. The first step is to recognise towing explicitly. And that’s a new thing. The legislation now provides that, yes, the body corporate can tow. But the process around that is the interesting thing.
In effect, the body corporate doesn’t need to go through the usual by-law enforcement process before it tows a car. It doesn’t need to go through conciliation, issuing form 1s or form 10s, applying to the Commissioner’s Office for an order that the car be towed and then wait for whatever period it takes for that order to arrive. This has always been the issue because waiting six months for an order to tow a car is unrealistic.
The government has basically said, ‘Go for it!’. You’ve got to comply with whatever the laws might be, which is the Transport Operations and Road Use Management Act, which relates to signs implying consent and all that stuff, which we’re not talking about today. You can only tow owners and occupiers under the BCCM Act. You can’t tow third parties under the BCCM legislation. That means these changes do not capture ‘visitors’ and ‘invitees’. And remember – neither of those terms are defined in legislation! Nor is an ‘occupier’!
So, that’s simple in theory, but the explanatory note had some very interesting commentary.
It says that if a body corporate decides to tow a vehicle, the body corporate must act reasonably. There are still rights available to an owner or occupier to dispute the body corporate actions, and the body corporate may still be liable if the decision to tow is found to be unreasonable or unlawful.
This seems very deliberate from the government. On the one hand, they’ve provided this quite new approach to towing, but then, on the other hand, they’ve given bodies corporate a pretty big reminder that they need to be careful about what they do.
We urge caution to anybody who thinks this means it’s carte blanche to tow. Yes, the options are now there to tow, but you must be careful.
It is not the free for all that people might think it is. The legislative intent is to resolve things without going to third parties like the Commissioner’s office. It would be crazy to tow a car without trying to find out who it belongs to and asking them to move. That is very unlikely to be capable of being defended as a reasonable decision.
There will no doubt be people who do it. Our issue with this legislation is that the explanatory note says, ‘Hey people, be reasonable’, but there’s nothing as prescriptive to that effect in the Act.
Let’s present this scenario. You’ve got a high-rise building with predominantly a high turnover of tenants. You’ve got somebody who signed a 12-month lease in the building only one or two weeks ago. They haven’t seen the by-laws. They park in a spot they believe quite reasonably is space in which they can park, particularly if there’s no signage or the signage isn’t clear. Is it reasonable to tow that person? If they parked there for an hour over the length of time? I think there are several factors that would lead you to think it might not be reasonable.
If you’re defending one of these positions from a body corporate perspective, when you’re towed someone without trying to talk to them, you must be able to answer ‘Why’ and be able to justify that to whoever is asking, which is more than likely to be an adjudicator. A short note here: the issue of an ‘abandoned vehicle’ is not really covered by these changes. By that, we mean a vehicle abandoned on common property, it doesn’t belong to an owner or occupier, or despite all the best efforts of the body corporate, they cannot track down the owner of the vehicle.
A final, tiny side note is that ‘Motor vehicle’ here has the same definition as it does under the transport laws. It does not include a motorised mobility device, a motorised scooter, a personal mobility device, or a power assisted bicycle. It may not even include a golf cart!
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898
This post appears in the November 2023 edition of The QLD Strata Magazine.
Question: As building managers, we’ve been instructed by the committee to organise the towing of cars if they stay in visitor parking longer than 2 hrs. Can an owner of a towed vehicle take action against us?
My body corporate committee appointed a car towing company to tow cars from our visitor parking if the car is parked for more than 2 hours. There is a sign displaying 2 hours maximum parking.
We are the building managers. The committee has verbally instructed us to place a notice on cars warning the car will be towed after the 2 hour time limit has been exceeded. We then emails a photo of the car and a request to tow to the towing company.
Our agreement states only that we are to clean and monitor visitor parking. There is no mention of towing, taking photos and sending towing requests to the towing company.
We are concerned an owner of a towed car will take action against us. Where do we stand?
Answer: there is scope for an owner to involve you in any claim they may make against the body corporate.
I really don’t think people should be knowingly involved in actions they know are unlawful. I would do it gently, but as a manager, I would tell the body corporate that you won’t instruct the towing company for fear of repercussions to you personally. That could even be on written legal advice – which makes it very hard to argue with.
But to answer the question – yes, there is scope for an owner to involve you in any claim they may make against the body corporate. The merits of that are something else entirely through.
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
This post appears in the February 2023 edition of The QLD Strata Magazine.
Question: I am in the 144 lot apartment building. A resident or visitor has been parking in my allocated parking space. What can I do? Can we tow the car given that the car is parking in my space for more than 24hours?
Answer: You can’t tow the car without an adjudicator’s order.
No, you can’t tow the car without an adjudicator’s order. If you do tow the car then you run the risk of being liable for what happens to it during its impounding.
If you are having problems with people parking in your spot, your body corporate committee should be enforcing its by-laws about parking.
Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #466.
Question: Our Body Corporate is constantly threatening to tow residents who park in designated visitor parking. Can they actually tow residents’ cars or is this just scare tactics?
Our Body Corporate is constantly threatening to tow residents who park in designated visitor parking. We have been here 3 years and to our knowledge, no one has ever had their vehicle towed. Can the BC actually tow residents’ cars off the property legally or is it just scare tactics?
I have read the other Q&As in this article but it’s still not clear. Does my body corporate have to issue me with an official breach notice prior to towing my car? Not just a threatening email?
Answer: Cars can be towed with an order from the Commissioners Office. That order takes several months to issue.
I’d agree with you when you say it’s a scare tactic. Cars can be towed with an order from my former Office, the Commissioners Office. That order takes several months to issue.
To do any of that, it requires the body corporate to have a by-law providing for towing. Have you had a look at your by-laws to see if that’s the case? If there’s no by-law then there’s zero option for the body corporate to follow through on their threats.
Having said all that, it’s perfectly fine for the body corporate committee to send communication to all owners and occupiers about parking and ask they comply with parking obligations. How they word that communication is crucial. It can be as threatening and dramatic as the committee likes, but my experience is that you catch more flies with honey.
Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #433.
Question: Can my body corporate put wheel clamps on a vehicle parked in visitor parking?
Can my body corporate put wheel clamps on a vehicle parked in visitor parking? I live in a townhouse complex with internal roadways.
Answer: Absolutely not.
Absolutely not.
There is no self help remedy for what I suspect is a purported by-law breach. The only way to enforce by-laws is with an order from the Commissioner’s office. This article we wrote on visitor parking.
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #390.
Question: Do the recent tow truck legislation changes alter whether the body corporate can tow a car from visitor and other strata car parking areas?
Do the 16 April 2018 changes to tow truck legislation alter the process to be adopted by a body corporate wanting to tow owners vehicles which are parked in designated visitors car spaces?
Answer: The recent changes had no impact on the restrictions and requirements.
The recent changes to the towing legislation had no impact on the restrictions and requirements (hoops to jump through) of bodies corporate towing cars.
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #233.
Question: How do you remove an abandoned car on your property? Can we tow the car?
A previous tenant has moved out and left his unregistered car behind in the underground car park and despite repeated requests has not returned to remove it.
The letting agent has not co-operated on the matter claiming that the tenant’s account with them is now been closed.
How does the Body Corporate legally remove the offending vehicle?
How can the removal costs be referred back to the previous tenant as this should not be a Body Corporate expense?
Answer: If the body corporate is 100% certain that the car is in no way connected with anyone in the scheme, the pragmatic approach is to tow
The issue is this:
The body corporate cannot tow the car of an occupier without going through the formal by-law breach process.
If the car does not belong to an occupier it becomes like me parking on your driveway without your consent. You can arrange to tow me.
If the body corporate is 100% certain that the car is in no way connected with anyone in the scheme, the pragmatic approach is to tow it and see what happens. The worst that can happen is the owner comes back and says ‘You should have breached me, and you didn’t, therefore you owe me what I spent to get my car back.’
If the owner was not associated with the scheme the body corporate’s position would very defensible.
If the owner was an occupant the body corporate would not have a leg to stand on.
That is the pragmatic position! And if only we could get some legislative reform to make this all a lot easier…
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #108.
Have a question or something to add to the article? Leave a comment below.
EmbedRead next:
- QLD: Q&A The First rule of Visitor Parking in Apartments – umm, it’s for visitors!
- BCCM: Parking in community titles schemes
Visit our Strata Parking OR Strata Legislation Queensland
Looking for strata information concerning your state? For state-specific strata information, try here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.