Commissioners Corner: Towing Orders

Friday January 18th, 2019

The issue of vehicle towing, including if, when and how the body corporate can tow an “illegally” parked vehicle, has been raised at a number of public information seminars presented by my Office.
There are no simple answers to these types of questions. Each situation is different and it depends on the facts to hand, including what–if any–by-laws about parking and towing are applicable.

In this article, I will provide an overview of some adjudicators’ orders about towing as a way of providing guidance about this sometimes vexed issue, by presenting some of the adjudicators’ statements of their reasons.

I stress that orders are made specific to a scheme and the facts of a dispute. It is up to bodies corporate and owners to consider the orders and how applicable they may be to their own circumstances. All adjudicators’ orders are published at http://www.austlii.edu.au/, with the ability to search by keywords.

In Mt Gravatt Business Centre [2017] QBCCMCmr 315 (26 June 2017), the adjudicator stated:

“It has been noted in previous adjudications that a body corporate may have common law rights to have a vehicle towed which is separate from the body corporate’s rights to enforce the by-law. This may include the right to action an interference with the enjoyment of land as a common law nuisance. Any action to have vehicles towed based on common law rights rather than because of a by-law contravention would be outside the jurisdiction of an adjudicator because it would not relate to the enforcement of rights under the Act or the CMS. A body corporate might wish to seek legal advice about the implications of exercising common law rights to tow a vehicle.”

In Aztec on Joyce [2013] QBCCMCmr 28 (29 January 2013), the adjudicator stated:

“If the body corporate were to seek to rely on common law rights to tow a vehicle it would be prudent for the committee to obtain independent legal advice on those rights. The committee would then be able to arrange for towing in a manner compliant with those rights. In arranging for towing the committee should still be aware that the decision making of the committee must still comply with the [Act’s] procedures. For example, even if the towing was lawful, the decision by the committee to enter into a contract with a tow truck company would be contrary to the [Act] if the committee chose to do this unreasonably or without following proper meeting procedures. This is because, regardless of the subject matter of a committee decision, the committee must follow [the Act’s] procedures in making the decision and must act reasonably in coming to the decision.”

The adjudicator also stated:

“I have no jurisdiction to determine whether or not it would be lawful for the committee to have the vehicle towed based on any common law rights. However, provided the committee has first made a reasonable effort to warn the respondent that his car is causing an obstruction and will be towed then a decision by the committee to arrange for towing would not be unreasonable under the [Act]. I am prepared to make a declaration to that effect.”

In Fernbrook [2015] QBCCMCmr 330 (14 July 2015) the adjudicator stated:

“I will make orders that effectively ensures that the owner and occupiers of lot 62 must cease to park any vehicles in the visitors parking spaces and that failure by the occupants of lot 62 to cease to park vehicles in visitor parking, will permit the body corporate from resolving to have the offending vehicles removed from the common property and to seek the costs of removal from the owners of the offending vehicles.”

I would also point out that within these orders, there are references to other orders about parking and towing, which of themselves may be of relevance.

So, then, what are some of the key take-outs from these orders? I’d suggest they might include the following:
• It is unwise for a body corporate to assume its by-laws provide for parking and towing without having first checked that such by-laws are properly registered.
• It is equally ill-advised, if not more so, for a body corporate to undertake or even consider undertaking towing without having first informed itself about its potential liability arising out of towing–that is, by seeking legal advice.
• On the flipside of the equation, it is not a good idea for owners and occupiers to assume they can park ‘anywhere’ or that there will not be consequences if they continue to park in contravention of by-laws.
• The body corporate must undertake a proper decision-making process, including acting reasonably, if it is considering towing a vehicle.
• Part of acting reasonably might include giving some kind of notice of warning for when it is intended to tow a vehicle.

Putting these points to one side, it needs to be remembered that towing is just one option of several available to a body corporate in addressing a parking problem and, as such, does not need to be the only option a body corporate ever considers.

At the risk of repeating myself from other articles and statements I’ve made in seminars and presentations, it should not be assumed that all owners and occupiers–let alone visitors–know what the by-laws are about parking and towing.

A body corporate facing issues about parking should be asking itself, have we done enough to ensure the by-laws are widely known? Are we making clear what our by-laws say about where someone can park and when? If we are considering towing, are we giving sufficient notice about that? Do we need to consider our signage and our communication to owners and occupiers (and visitors, if possible)?

While neither I nor my Office can provide advice about parking or towing or comment on the appropriateness or validity of a by-law, the information in this article might at least provide some prompts for bodies corporate on what they need to think about.

For further, general body corporate information please contact my Office on 1800 060 119 or visit http://www.qld.gov.au/bodycorporate.

This article was contributed by Chris Irons, Office of the Commissioner for Body Corporate and Community Management.