I am frequently asked to provide simple guidelines for a body corporate to safely tow a vehicle from common property. Unfortunately, from the body corporate’s perspective, no such guidelines exist. In essence, each situation needs to be assessed on its own unique merits.
The relevant considerations will depend upon who is operating the vehicle and the circumstances in which it is parked.
A vehicle owned by someone unrelated to the scheme parked on a common property
A body corporate will usually have a right to tow such a vehicle. It is a right arising from the common law (i.e. not the body corporate legislation) akin to an action for trespass or nuisance.
The body corporate also needs to be absolutely sure that the vehicle in question does, in fact, belong to a trespasser and not an owner or occupier of the scheme.
In towing such vehicles, the body corporate still needs to act reasonably in relation to the decision to tow and the costs incurred. As a minimum, the body corporate should ensure that:
- there is signage on common property clearly setting out parking restrictions and a warning that towing may occur if the restrictions are contravened;
- a reasonable attempt is made to identify the owner of the vehicle and warn them that their vehicle will be towed;
- proper decision-making processes are followed by the committee as regards to the decision to tow; and
- reputable towing operators are engaged;
I would encourage committees to assess such vehicles on a case by case basis and seek legal advice, as for whether the common law authority to tow is available will depend on the precise circumstances of the case.
A Vehicle owned by owner/occupier parked on the common property in breach of the by-laws
In this case, the body corporate would as a starting point need a clear by-law setting out the rules relating to parking on common property and providing an authority to tow.
Unfortunately, that is not the end of the story.
The problem with these types of vehicles is that the body corporate legislation as it presently stands does not contemplate “self help” options as such. To enforce its by-laws, a body corporate must follow the process in the legislation, namely issue a contravention notice and then seek orders from an adjudicator. Therefore, on the basis of the law, as it presently stands, there is no clear ability for a body corporate to tow a vehicle owned by an owner/occupier parked on the common property without an adjudicator’s order. That is not a quick process, and by the time the orders are made, the vehicle may well have moved on.
Further, adjudicators that have been prepared to make towing orders have made those orders in response to a specific proposal to tow a specific vehicle driven by a specific individual who has been named as a respondent in those applications. Applications seeking a blanket authority to tow will not be successful.
Once again, I would encourage the committee to assess such vehicles on a case by case basis and seek legal advice, as the best course of action will depend upon the precise circumstances.
I expect that we will see some clarification to the law in this area in the coming years.